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Yale Law School Student Scholarship
8-1-2007
End Game: Understanding the Bitter End of
Evictions
Michael D. Gottesman
Yale Law School, [email protected]
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End Game:
Understanding the Bitter End of Evictions
Michael Gottesman
Supervised Analytic Writing Project
December 20, 2006
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................ 3
II. GETTING TO REMOVAL................................................................................................. 7
A. New Haven................................................................................................................................... 8
B. Comparison to Other Jurisdictions ......................................................................................... 12
III. REMOVALS IN NEW HAVEN ..................................................................................... 14
A. Scheduling a Removal .............................................................................................................. 14
1. Landlords ............................................................................................................................................... 15
2. Marshals ................................................................................................................................................ 18
3. Department of Public Works .................................................................................................................. 21
B. Preparing To Be Removed ....................................................................................................... 24
C. Removal ..................................................................................................................................... 26
1. The Removal Process ............................................................................................................................. 26
2. Possessions ............................................................................................................................................ 27
3. Costs....................................................................................................................................................... 30
4. Violence.................................................................................................................................................. 32
D. After a Removal ........................................................................................................................ 33
1. Landlords ............................................................................................................................................... 33
2. Where Tenants Go.................................................................................................................................. 34
3. What Happens to Tenants’ Possessions ................................................................................................. 37
Part IV. DEMOGRAPHICS OF REMOVALS IN NEW HAVEN ...................................... 40
A. Tenants ...................................................................................................................................... 41
B. Landlords................................................................................................................................... 44
Part V. WHY TENANTS GET TO A REMOVAL................................................................ 45
A. Honest Reasons ......................................................................................................................... 46
1. Losing Income ........................................................................................................................................ 46
2. Mental Illness......................................................................................................................................... 47
3. Using Tenant Self-help to Destructive Effect ......................................................................................... 48
4. Gentrification ......................................................................................................................................... 49
B. Gaming Reasons........................................................................................................................ 49
1. Seeking Systemic Incentives ................................................................................................................... 50
2. Taking advantage of the length of summary process ............................................................................. 52
VI. LESSONS TO LEARN .................................................................................................... 55
A. What Works Well ..................................................................................................................... 55
B. Where the System Could Improve .......................................................................................... 56
1. Efficiency Improvements ........................................................................................................................ 56
2. Process Improvement (Dignity Concerns) ............................................................................................. 59
3. Equity Improvement ............................................................................................................................... 60
VII. CONCLUSION............................................................................................................... 61
APPENDIX 1: Methodology ................................................................................................. 63
APPENDIX 2: Maps………………………………………………………………………...68
2
I. INTRODUCTION
“We have a bit of a problem here,” says State Marshal Robert Miller. He stands on
the front porch of an apartment with eviction papers in hand. The landlord began an eviction
action weeks ago for nonpayment of rent, and this morning Miller has come to put the tenant
out. But he arrived to find that the tenant took one last chance to stick it to her landlord: She
ripped some cabinets off the wall, allowed her daughter to write on the doors and walls, and
“bulked out” (a practice where the tenant leaves all possessions in order to create a high
moving bill for the landlord). Miller calls the landlord with an update. She insists that until
this point, she and her tenant of three years had been on good terms. Angry with her tenant,
who is not home this morning, the landlord considers canceling the removal to allow the
tenant time to move her own possessions, which would save the landlord the moving costs
and marshal fees associated with the removal. After deliberating, she decides that she has lost
enough rent on this property already and she has no choice but to foot the high moving bill to
get the tenant out of her property.1
A few weeks later, Miller faces an entirely different situation. As he approaches
another apartment to remove a tenant on this rainy morning, he stops his car to wait behind a
school bus while two people wheel a handicapped child onto the bus. He soon discovers that
he will be removing the single mother and two brothers of that child from their apartment. As
movers load the child’s medical bed onto the city truck, her two sons get drenched lugging
boxes to the neighbor’s porch. The mother says she could not pay the rent because an
administrative snag delayed welfare assistance checks. She has no idea where they will stay
tonight, or what will happen when her son returns from school.2
1
2
Author’s Personal Observation, Removal at 66 Gorham St., Hamden, Conn. (Mar. 9, 2006).
Author’s Personal Observation, Removal at 83 Willis St., New Haven, Conn. (May 16, 2006).
3
Legal scholars have studied residential evictions extensively, but have written
surprisingly little on the final stage, when the marshal comes to put the tenants out—what I
call removal.3 Legal writing on evictions falls into four broad categories commenting on: (1)
the rights of actors in the process—including the right against retaliatory evictions4 and the
rights of particular groups5; (2) the fairness and constitutionality of current and proposed
policies—notably, policies regarding evictions for drug use6 and for third-party criminal
activity in the apartment7; (3) proposals for reform of the summary process8; and (4)
descriptions of what actually happens in the course of the summary process actions—
primarily who gets evicted,9 how judicial systems handle the dispute over entitlement to
property,10 and what effect legal representation has on the length of that process.11 My
3
I use “removal” rather than “eviction” to emphasize that I am examining only that portion of the process
where the marshal removes the tenant from the property, and not the legal process more broadly.
4
See, e.g., George M. Armstrong, Jr. and John C. LaMaster. Retaliatory Eviction as Abuse of Rights, 47 LA. L.
REV. 1 (1986); James Hughes, Retaliatory Eviction, 102 MIL. L. REV. 143 (1983).
5
See, e.g., Paris R. Baldacci, Pushing the Law to Encompass the Reality of Our Families: Protecting Lesbian
and Gay Families from Eviction from Their Homes, 21 FORDHAM URB. L.J. 973 (1994).
6
See, e.g., Peter J. Saghir, Home is Where the No-Fault Eviction Is: The Impact of the Drug War on Families in
Public Housing, 12 J.L. & POL’Y 369 (2003); Caroline Castle, Note, You Call That a Strike?: A Post-Rucker
Examination of Eviction from Public Housing Due to Drug Related Criminal Activity of a Third Party, 37 GA.
L. REV. 1435 (2003); Note, State Statute Allowing Eviction of Tenant Convicted of Drug Offense is not Punitive
and, Therefore, does not Violate Either Double Jeopardy Clause or Excessive Fines Clause - Taylor v.
Cisneros, 102 F.3d 1334 (3d Cir. 1996), 27 SETON HALL L. REV. 1161 (1997).
7
See, e.g., Regina Austin, "Step on a Crack, Break Your Mother's Back": Poor Moms, Myths of Authority, and
Drug-Related Evictions from Public Housing, 14 YALE J.L. & FEMINISM 273 (2002); David C. Pulice, Supreme
Court Holds Federal Drug Law Permits Evictions: Public Housing Tenant Need Not have Knowledge of Drug
Use, 4 LAWYERS J. 2 (2002); Nelson H. Mock, Note, Punishing the Innocent: No-Fault Eviction of Public
Housing Tenants for the Actions of Third Parties, 76 TEX. L. REV. 1495 (1998); Alicia Werning Truman, Note,
Unexpected Evictions: Why Drug Offenders Should Be Warned Others Could Lose Public Housing if They
Plead Guilty, 89 IOWA L. REV. 1753 (2004)
8
See, e.g., J. Royce Fichtner, Note, The Iowa Mobile Home Park Landlord-Tenant Relationship: Present
Eviction Procedures and Needed Reforms, 53 DRAKE L. REV. 181 (2004); Randy G. Gerchick, Comment, No
Easy Way Out: Making the Summary Process a Fairer and More Efficient Alternative to Landlord Self-Help, 41
UCLA L. REV. 759 (1994)
9
Chester Hartman and David Robinson, Evictions: The Hidden Housing Problem. 14 HOUSING POL’Y DEBATE
461.
10
See, e.g., LAWYERS’ COMMITTEE FOR BETTER HOUSING, NO TIME FOR JUSTICE: A STUDY OF CHICAGO’S
EVICTION COURT (2003), available at http://www.selfhelpsupport.org/library.cfm.
11
See, e.g., John Bolton & Stephen Holtzer, Note, Legal Services and Landlord-Tenant Litigation: A Critical
Analysis, 82 YALE L.J. 1495 (1973); Steven Gunn, Eviction Defense for Poor Tenants: Costly Compassion or
Justice Served?, 13 YALE L. & POL’Y REV. 385 (1995); Lawrence McDonough, Wait a Minute! Residential
Eviction Defense is Much More than “Did You Pay the Rent?”, 28 WM. MITCHELL. L. REV. 65 (2001); Robert
4
project falls into the last category, broadly, and aims to fill two holes there. First, the vast
majority of current writing discusses only rules governing the phases of an eviction action
leading up to and including the trial or settlement, and stops short of the removal. Second,
writing that does discuss executions does not go beyond recitation of rules to offer empirical
data on how the process unfolds.12
Popular depictions fill this gap in our empirical knowledge of evictions and feed our
imaginations. In Michael Moore’s Roger & Me we see Flint, Michigan Deputy Sheriff Fred
Ross knock on a tenant’s door and move the family’s belongings, Christmas tree and all, out
to the curb on Christmas Eve.13 In Ralph Ellison’s Invisible Man we read the narrator’s
account of a removal in which two men carry out of the apartment a chair with the tenant, a
“motherly-looking old woman,” still sitting in it.14 In Awake and Sing, Broadway drew on the
scene of a family being removed to capture the despair of the Depression.15 And a search of
the New York Times reveals that the media depicts the link between evictions and
homelessness as direct and immediate.16 These popular representations offer only a one-
Daines, Landlord-Tenant Litigation and the Impact of Free Legal Services (1991) (unpublished manuscript,
Yale Law School) (on file with author).
12
Chester Hartman and David Robinson, Evictions: The Hidden Housing Problem. 14 HOUSING POL’Y DEBATE
461, 461 (noting the lack of data on removals).
13
ROGER & ME (Warner Bros. 1989)
14
RALPH ELLISON, INVISIBLE MAN 261 (1952).
15
CLIFFORD ODETS, AWAKE AND SING (1935).
16
Searching for “evict! /5 homeless!” reveals 400 hits in the New York Times alone. Although not every search
result draws a link between evictions and homelessness many do, including: Ian Urbina, “Keeping it a Secret as
the Family Car Becomes a Home,” N.Y. T IMES, April 2, 2006, at 1 (collecting stories of two families who had
been evicted and immediately resorted to living in their cars); Leslie Kaufman, “State Revamps Plan To Give
Assistance to Homeless,” N.Y. T IMES, Dec. 11, 2004, at B1 (“Perhaps the greatest impact on homelessness in
the city will come from the funds that will go to families facing eviction. . . .”); Nina Bernstein, “Immigrant
Group Sues State Over Halt to Some Benefits,” N.Y. T IMES, Dec. 7, 2004, at B3 (“‘I am worried that I will be
evicted and become homeless.’”).
5
dimensional view of the tail-end of eviction actions: desperate tenants getting the short end of
the stick in rather dramatic fashion.17
This project seeks not to replace these images, but to draw upon empirical research to
provide a more nuanced account of what actually happens in the final stage of evictions. The
law touches a person’s life in a powerful way during an eviction: At stake for the landlord is
possession of a large asset, and a cash flow that the landlord often relies upon to make
regular mortgage payments; at stake for the tenant is possession of the place he has called
home for the past months or even years. At the tail end of an eviction, these interests sharpen
and come into direct conflict with one another. This paper seeks to understand how the
removal process unfolds, who makes it to the final stage of evictions, how they behave, and
how the process affects their lives.
Adding nuance to the current one-dimensional view of removals has inherent value in
allowing us to understand better how the law affects individuals’ lives, but it also has
instrumental value. Empirical research on how the current removal process works, establishes
a foundation for broader deductions about for whom it works and how well. One prominent
voice in the world of housing policy noted:
Having good data on this vast, hidden housing problem would seem an essential ingredient for
developing housing policies and programs that might decrease the incidence and negative
impact of what, for most of those affected, must be a profoundly traumatic experience . . . .18
This paper begins to provide empirical research on this under-studied topic. In doing so and
in drawing deductions from these findings to suggest paths for future research, this paper
advances scholarship on an area of law that powerfully affects all parties involved.
17
As far as the author is aware, Pacific Heights offers the only popular depiction that prompts the audience to
root for the landlord, and against the tenant, who refuses to leave his rental apartment and ruins the lives of his
landlords. PACIFIC HEIGHTS (Warner Bros. 1991).
18
Hartman & Robinson, supra note 12, at 461-62.
6
Part II briefly explains the laws governing the eviction process—both the process by
which landlords and tenants settle their dispute over possession of the property, and the
process by which landlords remove tenants who have lost that dispute. Part III examines how
the removal process unfolds in practice. To describe the phases of the removal process and
how various actors play their respective roles, this Part analyzes data from various legal
forms completed during removals in 2005. To supplement these data, this Part also relies
upon field research: observations of removals in New Haven and interviews with landlords,
marshals, tenants, and community agency workers.19 Part IV discusses the demographics of
removals, examining socioeconomic features of landlords and tenants involved in removals.
Part V discusses why tenants get to the removal phase, focusing on whether tenants at this
phase are merely gaming the system in some way. In light of these descriptions of how the
process unfolds, whom it involves, and why it begins, Part VI draws lessons about what parts
of this process work well and which could be improved. Part VI concludes.
II. GETTING TO REMOVAL
Connecticut provides landlords a judicial procedure called “summary process” for
evicting tenants who have violated terms of their lease or whose leases have expired.20 A
number of works exhaustively catalogue the steps of Connecticut summary process actions.21
This Part briefly summarizes the phases of a New Haven eviction in order to establish the
19
For an explanation of research methodology, see Appendix 1.
CONN. GEN. STAT. tit. 47a (2006). Other states grant similar grounds for evictions. See, e.g.,
21
See, e.g., PAUL MARZINOTTO, CONNECTICUT SUMMARY PROCESS MANUAL (1986); Gunn, supra note 11, at
app.; Mark Setterfield, The Eviction Process in Connecticut (Trinity Ctr. for Neighborhoods, Research Project
16, April 1996), available at http://www.trincoll.edu/depts/tcn/Research_Reports/resrch16.htm; Steven
Shepard, Withholding Rent in Connecticut: The History and Application of the “Habitability” Defense to
Eviction Actions (2005) (unpublished manuscript, Yale Law School) (on file with author). The housing courts
also publish user’s guides. STATE OF CONNECTICUT JUDICIAL BRANCH, A LANDLORD’S GUIDE TO SUMMARY
PROCESS (EVICTION) (2004), available at http://www.jud2.ct.gov/webforms/Publications/landlordguide.pdf;
STATE OF CONNECTICUT JUDICIAL BRANCH, A TENANT’S GUIDE TO SUMMARY PROCESS (EVICTION) (no date).
And community agencies also publish guides. See, e.g., LEGAL ASSISTANCE RESOURCE CENTER OF
CONNECTICUT (LARCC), TENANT’S RIGHTS: EVICTIONS (2006), available at
http://www.larcc.org/pamphlets/housing/tr_eviction.htm.
20
7
legal context in which removals take place, and to compare how other jurisdictions handle
this process.
A. New Haven
Landlords in Connecticut have a number of legal grounds for evicting tenants,22 but
almost every eviction begins because the tenant has failed to pay rent.23 And the same holds
true for New Haven evictions ending in removal:
Figure 124
Cause for Beginning an Eviction
Percent of Total Cases
(n=105 evictions in 2005)
93%
5%
Nonpayment of rent
Where one originally had the right or
privilege is now terminated/ lapse of time
Violation of lease
2%
The law grants other grounds for evictions,25 but landlords rarely use these.
Before starting an eviction, a landlord must serve the tenant with a Notice to Quit,
asking the tenant to leave the property within five days and stating the reason why.26 For
22
CONN. GEN. STAT. § 47a-23(a) (2006).
Past studies of New Haven and other jurisdictions have concluded that nonpayment of rent accounts for over
ninety percent of all eviction actions. See, e.g., Daines, supra note 11, at 24 tbl. “Cause of Action”; Gunn, supra
note 11, at 397; HOMEBASE, supra note 176, at 9 (finding that eight of its nine sample evictions were for
nonpayment); Rafael Podolsky, A Study of Eviction Cases in Hartford: A Follow-Up Review of the Hartford
Housing Court 7 tbls. 6&7 (1995) (unpublished report, Legal Assistance Resource Center) (on file with author);
Rafael Podolsky, A Study of Eviction Cases in New London: Case Processing in a Non-Housing Court District
3 tbl. 4 (1992) (unpublished report, Legal Assistance Resource Center) (on file with author).
24
ONLINE HOUSING COURT DATABASE.
25
Other grounds include when a residential rental agreement or lease terminates for any of the following
reasons: by reason of any expressed stipulation therein; nuisance or serious nuisance; when the occupant never
had a right to occupy the premises; when the occupant originally did have a right, but that right has terminated;
when the occupant refuses to agree to a “fair and equitable” rent increase; and when the landlord intends either
to permanently remove the rented unit from the housing market, or intends to occupy it as his principal
residence. CONN. GEN. STAT. § 47a-23(a).
26
CONN. GEN. STAT. § 47a-23(a). In nonpayment cases, the marshal may not serve this notice on the tenant
before the ten-day grace period for payment has lapsed. CONN. GEN. STAT. § 47a-15(b). Neither the New Haven
Housing Court nor the marshals record how many Notices to Quit marshals serve on tenants in a given year, so
it is difficult to determine how often parties resolve their differences at this stage.
23
8
service of all papers, the law calls for in-hand or abode service by marshals, not landlords;27
anecdotal data suggests that marshals typically comply with these obligations.28 After the
five-day notice period, a landlord formally enters a summary process action by having a
Summons and Complaint served on the tenant. This alerts him that he or his attorney must
appear in court and issue a response by a certain date.29 In 2005, marshals served 2007
Summons and Complaint forms in the City of New Haven,30 representing 6.1% of New
Haven’s 33,16731 residential rental units.32 If the tenant fails to appear for a court date, the
Housing Court grants a default judgment and then issues an Execution, meaning the landlord
wins and gets to move to the removal phase.33 A majority of cases that get to removal—
sixty-seven percent in 2005—end this way.34
Removed tenants rarely have representation through this process. Whereas fifteen
percent of all evicted tenants typically secure representation,35 or under two percent of
27
CONN. GEN. STAT. § 52-57(a) (“Except as otherwise provided, process in any civil action shall be served by
leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual
place of abode, in this state.”).
28
See infra notes 98-102 & accompanying text.
29
Id.
30
Interview with Suzanne Colasanto, Clerk, New Haven Housing Court, in New Haven (October 13, 2006).
31
U.S. CENSUS BUREAU, FACT SHEET: NEW HAVEN CITY, CONNECTICUT (2000), available at
http://factfinder.census.gov/servlet/QTTable?_bm=y&-qr_name=DEC_2000_SF3_U_DP4&geo_id=16000US0952000&-ds_name=DEC_2000_SF3_U&-_lang=en&-redoLog=false&-_sse=on
[hereinafter FACT SHEET: 2000]
32
A relatively negligible portion were served on commercial tenants; and tenants receiving more than one
Summons and Complaint a year did not account for much of the overall total. Telephone Interview with
Michael D’Andrea, Assistant Clerk, New Haven Housing Court, in New Haven, Conn. (Nov. 21, 2006).
33
CONN. GEN. STAT. § 47a-26 to -26(a) (2006).
34
Based 200 removals in 2005, over half of all removals in that year, this percentage is likely representative of
removals as a whole. This number was calculated in the following way: First, names were gathered from
Executions used in removal cases. CONNECTICUT SUPERIOR COURT, SUMMARY PROCESS EXECUTION FOR
POSSESSION [herinafter SUMMARY PROCESS EXECUTIONS] (Jan. 1-July 5, 2005). Then, entering these names
into the New Haven Housing Court’s online database revealed the procedural overview of each case.
CONNECTICUT SUPERIOR COURT, HOUSING CASE LOOK-UP [herinafter ONLINE HOUSING COURT DATABASE]
(2006), available at http://www.jud.state.ct.us/housing.htm.
35
Daines, supra note 11 at 18. See also NO TIME FOR JUSTICE, supra note 10 at 4 (finding that five percent of
all evicted tenants appearing in Chicago’s housing court appeared with representation).
9
removed tenants in 2005 had representation,36 suggesting that represented tenants settle
disputes before removal more often than do unrepresented tenants.37 And although those who
secure legal representation often do so through legal service organizations,38 only one out of
five represented tenants in this sample had a legal aid lawyer, suggesting that legal aid
lawyers are especially adept at resolving their cases before the removal phase. On the other
side of the case, large landlords typically use private attorneys, but “mom and pop” landlords
often navigate this process pro se.39
If the tenant does not default, the parties move toward trial. Immediately before trial,
the landlord and tenant meet with a Housing Specialist,40 a trained mediator, which leads to a
settlement in over ninety percent of cases.41 When parties settle, the judge approves the
stipulated agreement and the eviction process ends. If the tenant violates the stipulated
agreement (which happens often42), the landlord is entitled to obtain an Execution and move
to the removal phase. Roughly one-hundred cases make it past these phases to trial.43 When a
36
This number was calculated based on an analysis of the first 271 individuals removed in 2005. SUMMARY
PROCESS EXECUTIONS; and ONLINE HOUSING COURT DATABASE.
37
Shelly White confirmed that the vast majority of cases New Haven Legal Assistance lawyers settle their
eviction cases before removal. Interview with Shelly White, Attorney, New Haven Legal Assistance, in New
Haven (Dec. 14, 2006).
38
Of Gunn’s eighty-eight cases with tenant representation, fifty-nine of them involved representation by legal
aid or legal services lawyers. Gunn, supra note 11 at 12.
39
See infra Figure 11.
40
CONN. GEN. STAT. § 47a-69.
41
Interview with Cynthia Texeira, Housing Specialist, New Haven Housing Court Clerk, in New Haven, Conn.
(May 18, 2006). See also, CITIZENS’ ADVISORY COUNCIL FOR HOUSING MATTERS, REPORT TO THE GENERAL
ASSEMBLY 4 (2005), available at http://www.ct.gov/ecd/lib/ecd/cac-2005_full_report.pdf (reporting that,
statewide, housing specialists settle ninety-five percent of cases).
42
In thirty-nine percent of removals, landlords obtained Executions after violations of stipulated judgments.
ONLINE HOUSING COURT DATABASE. (based on analysis of the first 119 removals in 2005)
43
Telephone Interview with Mike D’Andrea, supra note 32; Shepard, supra note 21 at 34 (reporting 103 trials
in 2004).
10
tenant wins at trial, which rarely happens,44 he may remain in the property in good standing;
when the landlord wins, the judge issues an Execution.
Once the landlord has served the tenant with an Execution a marshal can return after
twenty-four hours to remove him and his belongings from the apartment.45 Half of the
tenants who receive an Execution move out before removal day—37746 out of 75747 in 2005.
The other half of cases result in removal. When a marshal removes a tenant, he is responsible
for placing the tenant’s belongings on the curb—the landlord reimburses the marshal for all
costs, including the cost of hiring movers.48 Then “[t]he chief executive officer of the town
shall remove and store” these belongings for fifteen days.49 New Haven delegates this
responsibility to the Department of Public Works (DPW),50 and the DPW notifies tenants that
they have twenty-two days to retrieve their possessions.51 If tenants want to retrieve their
belongings during this period, Connecticut law dictates that the municipality may charge
tenants for the cost of storage.52 Most municipalities do so,53 but New Haven does not charge
tenants for storage costs. This practice has no legal basis. A legal aid lawyer54 and the New
44
Telephone Interview with Mike D’Andrea, supra note 32. A landlord who owns about thirty units has lost
only three eviction trials in the past thirty years. Telephone Interview with Ron Candelora, Immediate-Past
President, New Haven Landlord Association (Dec. 18, 2006).
45
CONN. GEN. STAT. § 47a-42.
46
SUMMARY PROCESS EXECUTIONS (Jan. 1-Dec. 31, 2005).
47
Memoranda from Frank Blee, Eviction Warehouse Manager, New Haven Department of Public Works, Fiscal
Year Performance Indicators [hereinafter DPW Performance Indicators] (June 2005 and June 2006) (on file
with author).
48
CONN. GEN. STAT. § 47a-42.
49
CONN. GEN. STAT. § 47a-42.
50
NEW HAVEN, CONN., CODE § 2-276 (2005) (“Authority over abandoned property”), available at
http://www.municode.com/resources/gateway.asp?pid=11090&sid=7
51
Memorandum from the DPW, City of New Haven, Notice to Evictees Reclaiming Household Goods Moved
During Eviction [herinafter Notice to Evictees] (no date) (on file with author).
52
CONN. GEN. STAT. § 47a-42.
53
See e.g., Telephone Interview with Sharon, Clerk, East Haven Department of Public Works (Nov. 13, 2006);
Telephone Interview with John Cabral, Jr., Program Specialist, Hamden Community Service Department (Nov.
13, 2006); Telephone Interview with Ronda Carroll, Clerk, Hartford Department of Public Works (Nov. 13,
2006); Telephone Interview with Emily Barbero, Clerk, Building Department of the Town of Torrington (Nov.
13, 2006).
54
Interview with Shelly White, supra note 37.
11
Haven Housing Court Clerk55 claim that the decision not to charge tenants is mostly
political—the City wants to extend a courtesy to those seen as the “poorest of the poor”—and
partly practical—it is too much of a hassle to charge tenants and if the City charged for
pickup, the retrieval rates would decrease and need for storage space would increase.56 But
this policy also likely creates an incentive for tenants to remain in the premises in order to
receive free moving and storage services. If the tenant does not retrieve his property within
the set time frame, the town sells it at public auction.57
The number cases that make it through this process to removal has been declining
recently. Total removals scheduled—data is not available for removals actually carried out—
steadily dropped from 1125 in 2001 to 757 in 2005.58 Data on initiation of summary process
actions, which exist for only the past three years, also show a decline in evictions begun:
2303 in 2003 versus 2007 in 2005. Nobody can explain the reason for this trend with
certainty. Perhaps as the cost of evictions increases landlords resolve more disputes through
negotiating outside the legal system.59 Alternatively, the improvement in the economy may
mean fewer disputes need to be settled in the first place, because a greater proportion of
tenants have enough money to pay rent.60
B. Comparison to Other Jurisdictions
Each state has developed eviction procedures and laws that differ from one another in
some ways. On a procedural level, for instance, states process evictions in slightly different
55
Interview with Suzanne Colasanto, Clerk, New Haven Housing Court, in New Haven (Dec. 15, 2006).
In Hartford where tenants must pay storage fees, for example, only seven to ten percent of tenants retrieve
their goods. Telephone Interview with Ronda Carroll, supra note 53. For a counterexample, though, see the
Town of Torrington, where thirty to fifty percent of tenants retrieve their belongings despite having to pay for
storage. Legal Assistance Resource Center, Memo on Redemption Rate by Town, 2006 (on file with author).
57
CONN. GEN. STAT. § 47a-42.
58
DPW Performance Indicators, supra note 47. In 2001, the DPW scheduled 1125 removals.
59
Interview with Suzanne Colasanto, Clerk, New Haven Housing Court, in New Haven (Oct. 6, 2006).
60
Interview with Robert Solomon, Professor, Yale Legal Services Organization at Yale Law School, in New
Haven, Conn. (Oct. 11, 2006).
56
12
fora from one another—housing sessions of trial courts, municipal courts, small claims
courts.61 More substantively, states choose different points at which to slow down or speed
up the legal proceedings—at the opening of litigation, or at the Execution phase.62 But, taken
as a whole, most state laws governing the dispute for possession roughly resemble those
outlined in Section II.A insofar as they call for landlords to notify tenants at each step and
allow tenants ample opportunity to state their cases, while providing speedy resolution.63 In
terms of legal process then, removals across the country often share similar back-stories.
At the removal phase, state laws and procedures differ from one another on a number
of dimensions. As Figure 2 shows, states have developed their own rules on everything from
service of papers to retrieving removed possessions. The most notable difference between
New Haven and elsewhere is that tenants in New Haven never pay for moving or storage of
their goods, whereas elsewhere they often do:
Figure 2
Step of Removal
Phase
Service of Process
New Haven
 Method: In-hand or
abode
 Server: Marshal
Waiting period
 24 hours
between Execution and
removal
Who moves tenant’s
 Marshal hires private
goods
movers and bills
landlord
61
Examples of Differences
in Other Jurisdictions
 Method: Substituted64
 Server: Anyone over 18, other
than landlord65
 72 hours66
 Landlord moves goods or hires
private movers, and stores
possessions67
 Landlord can choose to take
possession and store goods in
See MARCIA STEWART ET AL., EVERY LANDLORD’S LEGAL GUIDE 396 (8th ed. 2006).
Rhode Island moves eviction actions into court more slowly than does Connecticut; Massachusetts slows
down cases at the end by granting longer automatic Stays of Execution. See, Setterfield, supra note 21.
63
See STEWART, supra note 61 (collecting eviction laws from all fifty states).
64
See, e.g., NEW YORK CITY CIVIL COURT HOUSING PART, EVICTION (2006), available at
http://www.nycourts.gov/courts/nyc/housing/eviction.shtml.
65
Id.
66
Id.
62
13
Length of time goods
must be held before
being auctioned
How tenants may
retrieve goods
apartment68
 Landlord may dispose of
tenant’s property69
 7 days70
 6 months71
 15 days
 May retrieve
belongings free of
charge
 May retrieve belongings of
personal value for free72
 Must pay appropriate parties for
moving and storage fees73
This local study examines how each of the categories of rules affects actors in New Haven.
Given the variation of procedures across these dimensions, this study of New Haven cannot
present universal findings about removals. But this local study’s findings inform other
jurisdictions by identifying how certain types of removal laws affect experiences of the
landlord-tenant end game.
III. REMOVALS IN NEW HAVEN
To give a complete picture of removals, including what losses the process entails and
where those losses lie, this Part begins before the removal day and ends after that day.
A. Scheduling a Removal
After the housing court issues an Execution, the final phase of an eviction begins with
the scheduling of the removal. A variety of actors in this process grant tenants a small
67
See, e.g., ARIZ. REV. STAT. ANN. § 33-361 (2006); SUPERIOR COURT OF ARIZONA, MARICOPA COUNTY,
FORCIBLE DETAINERS (2006), available at
http://www.superiorcourt.maricopa.gov/justicecourts/info/copy%20of%20forcibledetainer.asp.
68
See, e.g., NEW YORK CITY CIVIL COURT HOUSING PART, supra note 66; M INN. STAT. § 504B.365 (2006).
For an explanation of Minnesota removal laws, see LAWRENCE MCDONOUGH. RESIDENTIAL UNLAWFUL
DETAINER AND EVICTION DEFENSE (2004), available at http://www.probono.net/areas/libraryfiles/ud2000.doc.
69
See, e.g., ALA. CODE § 18-16-108 (2006); WYO STAT. ANN. § 1-21-1210 (2006).
70
See, e.g., DEL. CODE ANN. Tit. 25 § 5715. For an explanation of Delaware removal laws, see DELAWARE
LEGAL LINK, SUMMARY OF THE DELAWARE RESIDENTIAL LANDLORD TENANT CODE, available at
http://www.lscd.com/Home/PublicWeb/Content/Housing/summary_of_the_landlord_tenant
_code.htm#Actions%20for%20Summary%20Possession
71
See, e.g., MASS. GEN. LAWS ch. 239 § 3 (2006).
72
See, e.g., Id.
73
See, e.g., ARIZ. REV. STAT. ANN. § 33-361 (2006); DEL. CODE ANN. Tit. 25 § 5715; OKLA. STAT. ANN. tit. 41
§ 133 (2006); MINN. STAT. § 504B.365 (2006)
14
windfall of time at least once or twice before the removal day. Although the laws dictate that
marshals may remove tenants as soon as twenty-four hours after serving an Execution, data
show that removals actually happen an average of twenty days after the judge signs the
Execution,74 with the median period being seventeen days.75
1. Landlords
A landlord has few affirmative duties in a removal. But he can still shape the process,
primarily by deciding how quickly to effectuate the eviction. To move an eviction forward, a
landlord must first hire a marshal to serve the Execution on the tenant. Thanks to a 2000
lobbying effort by landlords to put a cap on marshal fees,76 marshals now charge statutorily
mandated rates77—$125 for the first hour of removal and $75 for each additional hour.78 So
landlords do not comparison shop based on price. Instead, most landlords choose a marshal
whom they already know. And if they do not know one, they contact the state marshal
association and get a list of marshals based in their area.
Next, the landlord must decide when to have the marshal serve the Execution on the
tenant. Most landlords have the marshal serve the Execution on the tenant immediately.79
Then once the marshal serves the Execution, a landlord must decide how quickly to press for
the actual removal of his tenants. When they talk to the marshal, landlords typically indicate
whether they want the tenant out immediately, or whether they want to drag their feet a bit.
74
To arrive at this number, I calculated the average (mean) number of days between the date the judge entered
on an Execution and the date the state marshal entered on the inventory he completed at the actual removal.
SUMMARY PROCESS EXECUTIONS (Jan. 1-Dec. 31, 2005); Various State Marshals, Eviction Goods Inventory
[hereinafter Eviction Goods Inventories] (Jan. 1-Dec. 31, 2005) (on file with author).
75
Id.
76
Telephone Interview with Robert Miller, State Marshal and President of the Connecticut Marshal’s
Association, (Dec. 14, 2006)
77
CONN. GEN. STAT. § 52-261 (2006).
78
Miller reports that he previously charged $100 per hour and he knew of many marshals who charged much
more than that. Interview with Robert Miller, supra 76.
79
Interview with Tommy Russo, State Marshal, in New Haven, Conn. (May 23, 2006).
15
Foot-dragging at the end of this process might seem counterintuitive, given that the landlord
has already lost rent and delays mean more lost rent. Nevertheless, some landlords do it. One
landlord who had already lost two months of rent asked the marshal to serve his tenants with
an Execution, then instructed the marshal to give the tenant three or four weeks to vacate the
property.80 In addition to demonstrating sympathy for the tenants, this decision intended to
serve the landlord’s financial interest. The cost of removing tenants is quite high—near
$1000—and often represents more money than does a month of lost rent.81 Therefore, giving
tenants time to move themselves out of the apartment might actually save the landlord
money.
Although no one can predict how quickly a landlord will shepherd an eviction
through its final stage, two factors ostensibly make a difference. The first is why the landlord
began the eviction. A marshal who has been doing evictions since 196982 has observed that
landlords tend to move more quickly in nuisance or violation of lease cases. A landlord who
owns over 200 rental units throughout New Haven said this observation squares with her
behavior.83 She moves more quickly in these cases than in nonpayment cases because
nuisances and violations tend to cause wider disruptions in the neighborhood than do
nonpayment cases, and because she has more sympathy for those who cannot or did not pay
rent than she does for those causing trouble.84 Nuisance and violation evictions are so rare,
though, that this observation is hard to test empirically—only two percent of 2005 landlords
cited violations of a lease and none cited nuisance.85
80
Author’s Personal Observation, Removal at 78 Lilac St., New Haven, Conn. (May 18, 2006).
See infra Subsection III.C.3.
82
Interview with Russo, supra note 79.
83
Interview with Ardelle Cowie, Owner, Chelsea Company, in New Haven, Conn. (Oct. 10, 2006).
84
Id.
85
See infra Figure 1.
81
16
Second, the size of the landlord appears to affect the speed with which a landlord
carries out a removal. But it does so in an unexpected way. A prominent eviction lawyer who
has represented New Haven landlords for years hypothesized that larger landlords remove
tenants more quickly than do “mom and pop” landlords, because the former are rule-bound
and therefore will proceed uniformly fast, whereas the latter may be expected to delay
removals more often in response to tenants’ personal appeals for delay.86 But data
demonstrate the opposite result. Landlords may be split into four different categories of
entities. Roughly in descending order of the overall size of enterprise, they are: (1) the
Housing Authority of New Haven (HANH); (2) cooperatives; (3) persons arranged in
partnerships, corporations, or limited liability corporations; and (4) individuals who own
properties alone or with another individual. Although not technically landlords, banks and
mortgage companies also initiate evictions when foreclosing on a property. Larger landlords
take longer than do smaller landlords to remove a tenant after the Execution is issued:
Figure 387
Type of Landlord
HANH
Cooperatives
Partnerships/corporations/LLCs
Individuals
Other Actors Initiating Evictions
Banks/ mortgage companies
Average number of days from issuance of
Execution to removal of tenant
27
28
21
17
24
These data roughly reflect the relative strength of incentives and decision-making
complexities different types of landlords face. That is, persons within a larger agency face
86
Telephone Interview with David Schancupp, Attorney, Shiff and Schancupp, in New Haven, Conn. (Aug. 24,
2006).
87
SUMMARY PROCESS EXECUTIONS; Eviction Goods Inventories.
17
less sharp incentives to act quickly than do sole proprietorships, because the former see little
direct benefit of quick action to recover a source of revenue.88
2. Marshals
Marshals have two fairly circumscribed jobs during this phase of the eviction: to
schedule the removal with DPW; and to serve the tenant with the Execution. In fulfilling this
latter duty marshals can and do behave in ways that affect the landlords’ and tenants’
experiences at removal.
Until recently, deputy sheriffs served process and carried out removals. But the
sheriff system came under attack in the late 1990s. Deputy sheriffs militated for reform
because they were appointed by the elected high sheriffs in each county, and therefore could
not plan their lives beyond the next election.89 Outsiders criticized the sheriff system for
being a corrupt, patronage-ridden vestige of county government.90 In a 2000 referendum,
Connecticut voters scrapped the sheriff system91 and legislators replaced it with life-tenured
marshals. Now to become a marshal, someone must submit an application, pass an
examination, and be appointed by the State Marshal Comission.92 Once appointed, marshals
operate as independent contractors, compensated purely on a fee-for-service basis.93 The fees
seem ample as marshals based in New Haven County made an average of $103,000 and a
88
The largest agency here, the Housing Authority, also views tenants with more sympathy than does the
average landlord. Interview with Robert Solomon, Clinical Professor, Yale Law School, in New Haven (Dec.
17, 2006) (Solomon chairs the Housing Authority of New Haven’s board of commissioners).
89
Dave Altimari, Sheriff System: End of the Line?, HARTFORD COURANT, Oct. 29, 2000, at B1.
90
Id.
91
Dave Altimari, Voters Abolish Centuries-Old Sheriff System, HARTFORD COURANT, Nov. 8, 2000, at A21.
92
CONN. AGENCIES REGS. § 6-38b-3 to -5 (2006). The eight-person commission consists of persons appointed
by various government officials, including the Chief Justice, representatives and the governor. CONN. GEN.
STAT. § 6-38b (2006).
93
CONN. GEN. STAT. § 6-38a (2006). They receive one-dollar annual salary from the state. CONN. GEN. STAT. §
6-33 (2006).
18
median of $77,000 in 2005.94 For these fees they serve process, carry out removals, and
collect debts anywhere in the state.95 Since they must find their own clients for this work and
cannot cut prices to attract business, marshals have strong financial incentives to do whatever
it takes to keep their clients—landlords, in the case of removals—happy.
The first thing marshals must do for their clients is contact the DPW to schedule an
eviction, a straightforward duty. Once he receives an Execution, the marshal calls Frank
Blee, manager of the DPW’s eviction warehouse, and makes an appointment for the next
available time with a City moving truck.96 Any decisions to delay this call to DPW are made
by the landlord and are not within the marshal’s discretion.
Serving the tenant with the Execution involves more discretion on the part of the
marshal. He must decide how and when to serve it. The law clearly prescribes in-hand or
abode service.97 By and large, marshals’ behavior comports with the legal rules here. All
marshals report following the same protocol. They knock on a tenant’s door and if the tenant
answers, they hand the tenant the Execution. Marshals are able to use this in-hand service
about half of the time.98 This is not fail-proof, though. In some cases, especially when the
tenant does not speak English, the marshal cannot determine if he is handing the Execution to
the right person.99 When the marshal and tenant do speak a common language, some
marshals take the opportunity to explain the process to the tenant, and advise them to move
their valuable possessions out of the property before the scheduled removal.100 If the tenant is
not home, marshals report that they insert the Execution into the apartment under the front
94
Office of State Ethics, State Marshals 2005 Annual Statement of Income (on file with author).
CONN. GEN. STAT. § 52-261 (2006).
96
For discussion of the details of scheduling a moving truck, see infra Subsection III.A.3
97
Conn. Gen. Stat. § 52-57(a).
98
Interview with Tommy Russo, State Marshal (May 31, 2006).
99
Id.
100
Interview with Gerald Capiello, Jr., State Marshall, in New Haven, Conn. (Mar. 28, 2006).
95
19
door101—this satisfies the requirements of abode service. And this practice seems to be
effective. Tenants confirm that they typically received their Execution in their hand or under
their door.102 And a legal aid103 lawyer reports almost never challenging an eviction for
improper service of the Execution, because tenants rarely register that complaint.104
When to serve an Execution often becomes more complicated than how to serve it.
Most marshals serve the tenant immediately and indicate on the Execution that they will be
back to remove the tenant twenty-four hours later, the statutory minimum amount of time for
notice.105 They do this even though they normally cannot schedule an appointment with the
DPW truck until at least a week later. Marshals notify the tenant they will return in twentyfour hours for two reasons. First, if a time slot opens on Blee’s schedule the marshal can
move his removal earlier if he has already given the tenant notice. This allows the landlord to
get his apartment back more quickly. Second, warning tenants that their removal is imminent
may scare them into moving out immediately, in which case the landlord not only gets his
property back quickly, but also he saves costs associated with the removal.106 Both results
please the landlord.
In tension with this long-term interest, though, is the marshal’s short-term interest in
getting paid for the day of the removal. On the removal day, the marshal earns $125 for the
first hour and seventy five dollars for each additional hour.107 And he sees none of this
101
Interview with Russo, supra note 98.
See, e.g., Telephone Interview with Kelly, Removed Tenant, in New Haven, Conn. (Aug. 28, 2006);
Telephone Interview with Veronica, Removed Tenant, in New Haven, Conn. (May 31, 2006). [Note: In total, I
interviewed fifteen tenants. All tenants were guaranteed anonymity, so all names are pesudonyms.]
103
Interview with Shelly White, supra note 54.
104
Interview with Solomon, supra note 60.
105
CONN. GEN. STAT. § 47a-42.
106
Interview with Capiello, supra note 100. (“We’re working for the landlord, so we try to get the tenants out as
soon as possible.”)
107
Interview with Robert Miller, State Marshal and President of the Connecticut Marshal’s Association, in New
Haven, Conn. (May 16, 2006); Interview with Russo, supra note 79.
102
20
money if the tenant moves before the removal. Thus, the marshal has an incentive to act in
such a way that increases the chances a tenant will stay in the apartment until removal. The
way to do this would be to schedule an appointment with the DPW for a few days in the
future, but then wait until the day before the DPW appointment to serve the tenant. In this
scenario, the tenant will not have time to move, and the marshal will therefore get paid for
carrying out the removal. Although no marshal admits to doing this, themselves, two
marshals believe that some of their colleagues engage in this practice.108
Thus, the system creates minor incentives for the marshals to act in ways that serve
either landlords or themselves in this preparatory phase. To the extent marshals employ
discretion in scheduling, they have little reason (aside from compassion) to prioritize tenants’
interests. Reforms might shift or disrupt these incentives.
3. Department of Public Works
The New Haven DPW plays a key role in determining when a tenant will be removed
from his apartment. By statute, the City must pick up the tenant’s possessions at the curb, and
in New Haven the DPW fulfills this duty.109 Instead of, say, the marshal moving a tenant’s
possessions to the curb in the morning and the City picking them up in the afternoon,
marshals carry out removals based on when the DPW can send a truck to sit at the curb to
take immediate possession of the tenant’s belongings. No marshal ever carries out a removal
without first coordinating a DPW truck to meet him at the removal location. So the DPW acts
as the bottleneck in scheduling a removal.
Evictions Warehouse Manager Blee dispatches the DPW trucks. He sends one of two
large moving trucks to accompany marshals on removals and tries to schedule each truck for
108
109
All marshals who asserted this belief asked for it not to be attributed to them.
Supra notes 49-50 and accompanying text.
21
more than one removal each morning. He only schedules removals at 7:30 a.m., 10:00 a.m.,
and 12:30 p.m., because if he starts them any later in the day they might last beyond normal
business hours and the City would have to pay the DPW workers overtime.110 But even with
two trucks at his disposal, he cannot keep up with the pace of removals. When a marshal
calls, Blee typically has to schedule the removal at least a full week later. Thus, Blee’s
normal scheduling constraints tend to grant tenants a windfall of time.
It is not rare for the DPW to delay removals even longer than a week in some cases.
When one truck is out of commission, as was the case for much of Spring 2006 after an
employee backed a dump truck into one moving truck, Blee might not be able to
accommodate a marshal’s request for two weeks or more. Furthermore, the DPW has only a
limited staff to complete a wide variety of tasks, some of them urgent. The employees who
drive the eviction trucks, for instance, also drive the snow plows in the winter. So, when a
snowstorm hits New Haven and the city needs to be plowed, Blee cancels evictions
scheduled for that day, and reschedules them for the next available day, giving the tenants yet
another windfall of time.111
In some cases, the DPW makes a more deliberate decision to delay removals.
Although the DPW technically is charged with carrying out removals whenever necessary,
the City adheres to a tradition of imposing a moratorium around Christmas. This unwritten
rule has endured from the mid-1990s when New Haven County Sheriff Henry Healey used to
110
Interview with Frank Blee, Eviction Warehouse Manager, New Haven Department of Public Works, in New
Haven, Conn. (Mar. 27, 2006).
111
One tenant “prayed [his] butt off” for this type of haphazard delay. Bob was scheduled to be evicted on May
2, 2006. He started packing on May 1, but did not finish by the next day. Fortunately for him, the DPW workers
had only one truck available that day and they ran out of time because a removal earlier in the day delayed
them. Around two o’clock, Bob received a call saying he would not be removed that day. During his removal
two weeks later, he was muttering to himself “God is great” because his prayer had been answered. Interview
with Bob, Removed Tenant, in New Haven, Conn. (May 16, 2006); Author’s Personal Observations, Removal
at 74 Orange St., New Haven, Conn. (May 16, 2006).
22
set the policies for removals. He never tried to make this moratorium law, but he had so
much control over his colleagues that he simply told the sheriffs that they were not to carry
out any removals around Christmas and New Year’s out of respect for the tenants.112 With
the decentralized marshal system replacing the sheriff system, no one person today has as
much influence over the officials carrying out the removals as did Healey. But, Figure 4
strongly suggests that the DPW still adheres to Healey’s instructions:
Figure 4113
Removals (2004 & 2005)
30
23
20
14
10
0
Dec. 1-10
Dec. 10-21
0
Dec. 22-Jan.1
The fact that in 2004 and 2005 no removals took place in the last ten days of December, and
every other ten-day period saw removals take place, shows that the moratorium is firmly in
place. Of course, this moratorium and the one around Thanksgiving114 provide DPW
employees with much appreciated holiday breaks. But they serve a larger purpose. Through
these moratoria the City extends tenants a courtesy. Other cities give tenants a break in other
ways. In the District of Columbia, for example, a tenant may not be removed when the
National Weather Service predicts that the temperature at the National Airport will drop
below freezing in the next twenty-four hours.115 In extending these courtesies, cities make a
112
A number of interviewees recalled Sheriff Healey’s moratorium. See, e.g., Interview with John Pottenger,
Clinical Professor, Yale Law School, in New Haven, Conn. (April 10, 2006); Interview with Peter Criscuolo,
State Marshall, in New Haven, Conn. (Mar. 27, 2006).
113
Eviction Goods Inventories (Dec. 1-Dec. 31, 2004 and Dec. 1-Dec. 31, 2005).
114
Interview with Frank Blee, Eviction Warehouse Manager, New Haven Department of Public Works, in New
Haven, Conn. (Oct. 3, 2006).
115
D.C. CODE § 45-2551(k) (2005).
23
conscious attempt to build good-will with those individuals most likely to feel marginalized
by the removal process. Blee reports that nobody in the City administration opposes the
moratorium, adding: “The Mayor has sympathy for these people. And he wants to express
that.”116
B. Preparing To Be Removed
Most tenants appear to understand the ramifications of their impending removal. They
learn about the removal process through various avenues. A tiny minority obtain their
knowledge from attorneys: under two percent of removed tenants had legal representation
during the first phase of the eviction.117 Some learn about the process from the marshal who
serves the Execution.118 Many ask friends and neighbors about the process119; and others
know about removals through past experience.120 Through these various sources, tenants
appear to understand the basics: they will be removed, their property will be packed and
stored, and they can retrieve their property later.
If most tenants appear to understand what happens to them and to their possessions in
a removal, the next question is what they do in the face of that knowledge. As stated above,
half of tenants move out of the property before the removal day.121 Those who do not move
immediately might try to delay the removal by asking the landlord for a few extra days to
move their belongings, themselves. Granting this request typically serves the landlord’s
interest since it allows the landlord to save the marshal’s fee and moving costs associated
116
Interview with Blee, supra note 114.
See supra note 36 & accompanying text.
118
Interview with Capiello, supra note 100.
119
See Rudy Kleysteuber, Repeat Play in Eviction Actions, 20 (2006) (unpublished manuscript, Yale Law
School) (on file with author).
120
See infra Subsection V.B.2.
121
See supra note 46 & accompanying text.
117
24
with removals. Some tenants recognize the landlord’s and use last-minute pleas as a simple
way to extend their rent-free living.122
Those with children might use the time between Execution and removal to arrange for
the children to stay elsewhere. Roxanne sent her daughter to live with her grandmother123;
Sheryl sent her daughter to live with a family friend.124 Both said they did this because they
had not yet found a place to live in the school district, but did not want to transfer their
daughters to a new school in the middle of the year.
As for possessions, most removed tenants leave a significant amount of valuable
items in the apartment.125 Few have anywhere to store their possessions. Furthermore, they
understand that they need not fear losing their possessions if they do not pack them, because
the landlord pays to pack these items—an expense of over $250126—and the DPW stores
them for over a month— private storage would cost $200.127 Some portion of tenants take
full advantage of the system and leave everything behind in order to get a free move while
they are relocating or to increase the landlord’s moving bill; others pack some of their
possessions and leave only their unwanted possessions and trash.128
Although a number of community agencies help tenants avoid evictions before they
start and help tenants navigate the legal battle, remarkably few community agencies play any
role in helping tenants relocate in the days between an Execution and a removal.129
122
See, e.g., Author’s Personal Observation, supra note 80. A tenant convinced the landlord to delay the
removal a few days, then made no effort to move himself and his family out of the apartment.
123
Interview with Roxanne, Removed Tenant, in New Haven, Conn. (April 10, 2006).
124
Interview with Sheryl, Removed Tenant, in New Haven, Conn. (May 3, 2006).
125
See infra Figure 5.
126
Interview with Crosby, supra note 136 (assuming an average apartment requires three movers).
127
Id.
128
I discuss in greater detail what types of possessions the tenant typically leaves for the City to collect in
Subsection III.C.2.
129
Community Mediation, for example, runs a Rent Bank to help tenants avoid evictions, and it provides
qualifying tenants with security deposits to help them move on to another apartment. But none of the eighty-two
25
C. Removal
Eventually, it comes time for the marshal to remove the tenant. Three features of the
process are particularly striking: how many valuable possessions tenants leave behind; how
costly the process is to tenants and landlords; and how, despite being high-stakes procedures,
removals almost always occur without resistance or violence.
1. The Removal Process
Just before a removal the landlord typically checks one last time that spending money
on this process is necessary. He might drive by the property late the night before or early the
morning of the removal to see if it looks like the tenants are still living there. The landlord
cannot and does not enter the property, but if he can determine that the tenants have left and
moved themselves out entirely, he might cancel the removal at the last minute. If the tenant
has left so much as one lamp, though, the landlord must go ahead with the removal in order
to reclaim possession of the property.130 So last-minute cancellations do happen, but only
rarely.
After checking the property, the landlord plays no role in the removal. In fact, the
landlord leaves the scene entirely. Most landlords know not to get involved with the actual
removal, and if they do not know, marshals strongly advise them to stay away.131 In Marshal
Tommy Russo’s experience, tenants get worked up much more often when the landlord
tenants who used the Rent Bank program in 2005 were at the Execution phase; and very few, if any at all, of the
ninety-four families using the security deposit program were at this phase. COMMUNITY MEDIATION, ANNUAL
REPORT 2005, at 8-10 (2006) (on file with author); Telephone Interview with Cristina Urrutia, Housing Case
Manager, Community Mediation, in New Haven, Conn. (Oct. 11, 2006).
130
CONN. GEN. STAT. § 47a-42.
131
Interview with Russo, supra note 79. Books guiding landlords through evictions counsel landlords not to get
involved in the removal of the tenant and the tenant’s possessions. See e.g., MARCIA STEWART, RALPH WARNER
& JANET PORTMAN, EVERY LANDLORD’S LEGAL GUIDE 400 (2006).
26
appears at the removal. Tenants often want to play out hostilities that were engendered in the
eviction process.132 Excluding landlords from the process reduces the chances of conflict.
Removal days start early. For the first one of the day, the marshal typically arrives
just before 7:30 a.m. Once the DPW truck and movers arrive in front of the property, the
marshal knocks on the front door. If the tenant does not answer, the marshal uses the
landlord’s key to enter the apartment. In a quarter of removals in 2005 a marshal found a
tenant home.133 When the tenant is home, the marshal informs the tenant he is there to
complete the eviction and explains that the tenant must leave immediately. Tenants normally
are expecting to see the marshal, but rarely are prepared to leave right away. Some are not
fully dressed; most request time to gather their possessions. Marshals exercise some
discretion in how they respond: One gives the tenant only enough time to find his coat and
wallet,134 and others allow the tenant to remain in the house for the duration of the removal in
order to pack some belongings.135 Once the marshal explains the process to the tenant and
surveys the apartment, he signals to the movers to start packing the tenants’ belongings.
2. Possessions
Movers trudge into the property with cardboard boxes. They pack everything tenants
have left aside from perishables, paint, chemicals, plants and garbage. And they construe
“garbage” narrowly. Broken fans, old bills, worn stuffed animals all get packed. The owner
of one moving company said he and his employees never throw anything away: “To you it’s
132
Id.
Eviction Goods Inventories indicate whether the tenant was home.
134
Author’s Personal Observation, 109 James St., New Haven, Conn. (Mar. 27, 2006).
135
Author’s Personal Observations, supra notes 2, 80, 111.
133
27
garbage, but to them it’s all they have, so we still have to protect it all.”136 This attitude
means that tenants do not face much risk of losing their possessions in the move.
Marshals hire the movers. Some opt for the more expensive movers both because
these movers handle the tenants’ belongings respectfully and because these movers are less
likely to steal something for which the marshal would be liable. Other marshals hire the
cheaper movers, who typically arrive in a rented van and use soggy boxes they have pulled
out of dumpsters in order to cut costs. These movers tend not to treat tenants’ possessions
with as much respect as do the former set of movers—one mover packed belongings into
boxes at the top of a staircase then tumbled them down the stairs to another worker.137
As mentioned above, tenants take different approaches to the impending removal of
their possessions. Adina, for example, treated it as a free move. A single woman suffering
from asthma, she could not move her own belongings and could not afford to pay someone to
do it. She was in the hospital at the time of her removal, but sent her nephew to meet the
marshal at the apartment and to pack up two boxes of clothing for her to use until she
reclaimed her possessions from the warehouse. When asked why Adina did not have her
belongings moved before removal, her nephew said, “Why would she? They’re going to
move it and keep it for free anyway.”138 Others treat the eviction as free trash removal. They
take everything they want, and leave the rest behind. In some cases, the tenants will actually
sign a statement consenting to the City delivering the goods straight to the landfill. This only
happened in a small handful of cases in 2005, though.139
136
Interview with Ron Crosby, Owner, Crosby’s Moving Company, (May 17, 2006) (Crosby’s sends a moving
crew on removals almost every day).
137
Author’s Personal Observation, Removal at 268 Day St., in New Haven, Conn. (May 23, 2006).
138
Interview with Jose, in New Haven, Conn. (Mar. 27, 2006).
139
Eviction Goods Inventories.
28
Most tenants leave valuable, hard-to-move items behind. Figure 5 lists items and the
percentage of cases where a marshal found these items left in an apartment:
Figure 5140
Item
Percentage of cases in which at least
one of this item was left behind
88%
86%
Chair/ couch
Boxes (all loose belongings get
packed in boxes)
Mattress/ box spring
78%
Large table (kitchen or coffee)
76%
TV
63%
Dresser/ Bureau
45%
Tenants leaving loose items that got packed into boxes had, on average, eighteen boxes worth
of goods, with the median being 12 boxes.141 Other items frequently found during a removal
include: washers, dryers, refrigerators, stoves, air conditioners, microwaves, vacuums,
bicycles, and children’s toys.142 This finding that a high proportion of tenants leave behind a
number of valuable items suggests that tenants understand and take advantage of the free
moving and storage services provide in a removal. This finding also suggests we must pay
attention to what happens to these possessions after removal to understand the tenant’s full
experience of this process.143
Movers carry the possessions to the curb where they hand them off to DPW workers.
As this happens, the marshal inventories everything that goes into the truck. At the end of the
removal, the tenant and a DPW worker to sign the inventory. No statute mandates this
practice. Marshals do this to avoid disputes. Before the advent of these inventories, some
tenants would go to the warehouse to pick up their belongings and claim that a nice television
140
Analysis of 50 randomly selected removals from various months throughout 2005. Eviction Goods
Inventories.
141
Id.
142
Id..
143
See infra Subsection III.D.3.
29
or couch was missing, and try to get the City or the marshal to buy them a new one.144 Now,
if tenants do this, Blee shows the tenant the inventory and that usually ends the dispute.145
3. Costs
For the tenant, a removal represents not only the sudden loss of a home and the
temporary loss of personal belongings, but also the loss of some dignity. Jane struggled to
beat a drinking problem and keep her life together. When she got removed from her
apartment, the process humiliated her and set her back because she felt it announced to the
whole world that she did not have her life together enough to maintain her home.146 When
Bob asked his friend about removals, the friend’s main advice was not to be home when it
happened so as to avoid the shame that accompanies hearing the knock on the door.147
Dignitary costs cannot be quantified, but still should be counted in the tally of losses
removals inflict.
More quantifiable are the landlords’ financial costs. Although each case varies, a
typical landlord loses roughly $3000 over the full course of an eviction, almost one-third of
which goes toward the removal phase. This amount is high in absolute terms, but becomes
even more significant in light of the fact that landlords are often not much wealthier than
their tenants.148 Figure 6 breaks down the expenses of a typical eviction from start through
removal:
Figure 6
Item
Expense
144
Interview with Miller, supra note 107.
Id; Interview with Criscuolo, supra note 112.
146
Email from Jane, Removed Tenant, to author (Aug. 18, 2006, 12:59PM) (on file with author).
147
Interview with Bob, supra note 111.
148
See Irving Welfeld, Poor Tenants, Poor Landlords, Poor Policy, PUB. INT., Summer 1988, at 110, 112;
Dennis Hevesi, For Small Landlords, All Problems are Big, N.Y. TIMES, Mar. 1, 1998, at K1.
145
30
Getting to the removal phase
Lost rent (assuming $576/month149 X 1.5 months150)
$864
Serving Notice to Quit on tenant
$40151
Serving Summons and Complaint on tenant
$52152
Court filing fee
$120153
SUBTOTAL
$1076
Removal phase
Serving Execution
$50154
Additional lost rent (assuming $576/month X 20 days155)
$384
Marshal’s fee (assuming 2 hours156 at $125 for the first hour and $75
$200
for each additional hour157)
Movers’ fee (assuming 2 hours at $130/hour158)
$260
Changing locks
$60159
SUBTOTAL
$954
Optional expenses
Attorney
$1000160
SUBTOTAL
$1000
GRAND TOTAL
$3030
Not all landlords hire attorneys, but the overwhelming majority of them—seventy-two
percent161—did in 2005, and therefore faced a total loss of near $3000.
149
Average price for a rental unit in New Haven. HomeGain.com, available at
http://www.homegain.com/local_real_estate/CT/new_haven.html (This estimate is based on accumulating the
2000 census tract data into zip code boundaries, adjusting for population variances and density, and mapping
these zip code areas to city and county boundaries.).
150
Daines, supra note 11, at 47 tbl. “Disposition Time.” He finds that an average eviction, from the service of a
Notice to Quit to the Final Disposition, takes somewhere between forty-three and seventy-four days. Thus, my
assumption of 1.5 months of lost rent represents a conservative estimate.
151
Serving the first tenant costs $30; serving additional tenants costs $10; marshals charge for gas and mileage.
This estimate of an average comes from LANDLORD’S GUIDE, supra note 21.
152
Id.
153
Id.
154
CONN. GEN. STAT. § 52-261 (2006).
155
To calculate the total period of lost rent, we must add to the disposition time the time it takes to move from
Execution to removal—twenty days, on average. Supra note 74 & accompanying text.
156
When Robert Miller charges tenants up front, he charges for two hours because in his experience an average
removal takes this long.
157
Id.
158
See supra note 126 & accompanying text.
159
Telephone Interview with Anthony Lauria, Landlord, in New Haven, Conn. (Oct. 10, 2006).
160
A local attorney reported this fee on the condition of anonymity, so his fees would not become public. In
quoting this amount, the attorney assumed an unrepresented tenant. If the tenant has representation, the
landlord’s attorney typically needs to do more work than average and, therefore, charges more. Representation
also typically helps the tenants delay the process, which inflicts a greater loss of rent on the landlord. See
generally Bolton, supra note 11; Gunn, supra note 11; Daines, supra note 9.
161
SUMMARY PROCESS EXECUTIONS.
31
4. Violence
Although each removal presents a different set of circumstances, virtually all of them
share one common characteristic: Removals occur without violence or resistance. Given that
the stakes are high and that any tenant making it to the removal has acted somewhat
stubbornly in the face of opportunities to resolve this dispute, it is remarkable that more
tenants do not resist or act violently upon removal. Tenants in New Haven have certainly
taken drastic measures, such as handcuffing themselves to the radiator,162 when the marshal
tries to remove them. And elsewhere, tenants have acted violently: patrolling the front porch
with guns in anticipation of the marshal’s arrival,163 and even beating and burning to death
the marshal when he arrived to carry out the removal.164 But incidents of resistance and
violence are surprisingly rare. The New Haven Police Department (NHPD) was called to
assist with only two removals in 2005,165 which represents a tiny portion of the 380 total
removals that year. This finding shows that the vast majority of tenants resign themselves to
being removed. And some even see their removal as necessary. One tenant said that although
he was depressed that he got removed, he “understood that it had to happen” because he
owed the landlord over $4000.166
162
Interview with Schancupp, supra note 86.
Dan Uhlinger, Barricaded Man’s Eviction Renewed, HARTFORD COURANT, July 10, 2001, at B1; Dan
Uhlinger, A Brief Break from Barricades; Man Fails in Bid To Get Police Aid Against Eviction, HARTFORD
COURANT, May 19, 2001, at B5; Dan Uhlinger, Facing Eviction, Man Vows He’ll Die First; With Rifle,
Barricades, Resident Rejects Eviction Order, HARTFORD COURANT, May 17, 2001, at A3.
164
Sean Gardiner, et al., A Violent History, NEWSDAY (N.Y.), Aug. 23, 2001, at A3; Sean Gardiner et al.,
“Despicable Crime”: City Marshal Beaten, Torched in Brooklyn, NEWSDAY (N.Y.), Aug. 22, 2001, at A5.
165
I arrived at this number by comparing the New Haven Police Department records for landlord-tenant
disputes to the DPW’s log of removals to find overlapping dates and addresses. New Haven Police Department
(NHPD), Call Information Maintenance Log,Landlord-Tenant Disputes, (Jan. 1-Dec.31, 2005); Eviction Goods
Inventories.
166
Interview with Bob, supra note Error! Bookmark not defined..
163
32
D. After a Removal
Most actors in the removal process feel the effects of a removal beyond the actual
removal day. Landlords have to spend money on repairs and they continue losing revenue
until they rent their property. Tenants need to find somewhere to live. And the DPW has to
handle tenants’ possessions.
1. Landlords
After removing a tenant, the landlord’s financial losses continue in the form of repairs
and lost rent. Some tenants intentionally damage apartments by pulling out the baseboards
and light fixtures,167 or by pouring cement down the drain.168 When a tenant has abused the
apartment, the landlord must spend a significant amount of money just to repair the
property—in one case where a tenant allowed his dog to defecate all over the apartment,
repairs cost upwards of $2000.169 But according to a landlord who has been involved in a
number of removals, this behavior is not the norm and tenants rarely plot out how to damage
the apartment.170
Filling an apartment with new tenants after a removal takes time. Before the removal,
uncertainties of timing prevent the landlord from promising an incoming tenant when the
apartment will be available. Once the apartment does become available, how long it takes to
fill it depends on a number of factors, especially location and size. A landlord who owns
properties throughout New Haven says she can fill a one-bedroom apartment near downtown
by the first of the following month, no matter the time of year; a multiple-bedroom near
167
Interview with Criscuolo, supra note 112. (Criscuolo once removed a woman’s estranged husband in the
morning and the tenant returned later that night only to rip out fixtures in the apartment.)
168
Interview with Ardelle Cowie, Owner, Chelsea Company, in New Haven, Conn. (Dec. 14, 2006).
169
Telephone interview with Anthony Lauria, supra note 159.
170
Interview with Cowie, supra note 83.
33
downtown normally sits empty until the start of a new academic term in the fall or winter;
and an apartment outside of downtown can take two months to rent.171
A landlord may sue a tenant to recoup eviction expenses—e.g., marshal’s fee,
mover’s fee.172 But because suing tenants costs money and tenants are often judgment-proof,
landlords rarely do this.173
2. Where Tenants Go
Some writers depict evictions, and especially removals, as leading directly and
immediately to life on the streets. As noted above, the media portray the link between
evictions and homelessness as robust.174 And homeless advocates treat the link in the same
way. A prominent writer and advocate for the homeless asserts that “forced displacement
frequently results in outright homelessness.”175 A San Francisco homelessness advocacy
organization published a report titled “When Rent Comes Due: Breaking the Link Between
Evictions and Homelessness.”176 And organizations’ and municipalities’ homelessness
prevention plans often consider prevention of evictions as a direct solution for
homelessness.177
171
Id.
CONN. GEN. STAT. § 471-35b (2006).
173
Interview with Ori Spiegel, Attorney, Law Offices of Lawrence A. Levinson, in New Haven, Conn. (Dec.
14, 2006) (reporting under five percent of clients sue tenants after removal); Telephone Interview with Robert
Miller, supra note 76 (reporting that he hears about landlords suing tenants in under five percent of cases).
174
See supra note 16 & Accompanying text.
175
Hartman & Robinson, supra note 12, at 468. See also Martha R. Burt, Homeless Families, Singles, and
Others: Findings from the 1996 Survey of Homeless Assistance Providers and Clients 12 HOUSING POL’Y
DEBATE 737 (2001).
176
HOMEBASE, WHEN RENT COMES DUE: BREAKING THE LINK BETWEEN HOMELESSNESS AND EVICTION
(1989).
177
See, e.g., MAYOR’S HOMELESS ADVISORY COMMISSION, THE NEW HAVEN TEN YEAR PLAN TO END
HOMELESSNESS 22-24 (2005); NATIONAL ALLIANCE TO END HOMELESSNESS, A PLAN, NOT A DREAM: HOW TO
END HOMELESSNESS IN TEN YEARS 9 (2000) (“In the past homelessness prevention focused primarily on
stopping eviction or planning for discharge from institutions like jail or mental hospitals.”)
172
34
Data suggest a more complicated picture of this link between removals and
homelessness. A high proportion of homeless individuals in New Haven shelters178 were,
indeed, once evicted. And eviction played a central role in making many of these individuals
homeless: At Columbus House, New Haven’s largest shelter, twenty to twenty-five percent
of clients report evictions as a primary cause of homelessness;179 data from the two women’s
shelters New Haven Home Restoration operates show thirty-one percent of clients indicate
eviction as a primary cause of their homelessness;180 at Life Haven, a shelter for women with
children and pregnant women, a caseworker estimates that up to half or two-thirds of the
women coming to the shelter have recently experienced an eviction.181 These data are selfreported, so may not be entirely accurate, but they suggest a link between evictions and the
homeless shelter population.
But tenants do not necessarily go immediately from an eviction to a homeless shelter.
Of the eight removed tenants in 2005 who eventually checked in to one of the shelters run by
New Haven Home Restoration, only half checked in to the shelter within a month of the
removal date.182 Hard data is thin on this point, so we cannot know if this small sample size
is an accurate depiction of timing between removal and homelessness; and we do not whether
people were living on a friend’s couch or on the street before checking in to the shelter. John
Thomas, a case worker at Immanuel Baptist Emergency Shelter, says that tenants often take a
178
Robert Ellickson has argued that we should be precise when discussing homeless populations and should
consider homeless persons living on the streets as distinct from those living in shelters. Robert C. Ellickson, The
Homelessness Muddle, PUB. INT., Spring 1990, at 45.
179
Interview with Dick Caplan, Clinical Director, Columbus House, in New Haven, Conn. (Apr. 10, 2006).
Note that all intake data is self-reported, so may not be accurate. Since shelters may not release client names for
comparison with lists of individuals evicted, this self-reported data is the best data available on this topic.
180
Email from Kara Capone, Director of Programs, New Haven Home Recovery (NHHR), to author (Oct. 10,
2006, 4:58PM) (on file with author).
181
Interview with Diane Ecton, Caseworker, LifeHaven, in New Haven, Conn. (Apr. 10, 2006).
182
I asked the staff who administered NHHR’s shelters to compare a list I compiled of removed individuals
with a list of their clients and when the clients checked in to the shelter. Email from Kara Capone, supra note
180; Email from Tasha Peters, Staff, Careways Shelter, to author (Oct. 11, 2006, 4:38PM) (on file with author).
35
while to check into a shelter after an eviction. He describes a normal path from eviction to
shelter: The tenant gets evicted, moves in with a family member, borrows too much money
or overstays his welcome, gets kicked out, moves to a friend’s couch, eventually gets kicked
out for similar reasons, and so on until the evicted tenant has exhausted his support network
and has nowhere to go but a shelter.183
Interviews with tenants roughly square with Thomas’s explanation. Before the day of
removal, most tenants had already arranged to stay with family or friends in town. Adina was
going to move in with her sister.184 Sheryl moved in with her son.185 Roxanne lived with her
daughter.186 Jeff luckily had a friend with an extra bedroom.187 And Bob had a trickier task of
convincing his ex-girlfriend to let him move in with her.188 It was the rare tenant who did not
know where he would spend the night after their eviction.
These data on where tenants go after a removal likely omits the most desperate
individuals, those more likely to become part of the homeless population living on the streets.
The ones who do not have friends or family in the area, or are not resourceful enough to find
a bed in a shelter are precisely the individuals who cannot be found after they have been
evicted. Therefore, although this study lends insight into the link between evictions and the
homeless in shelters, it does not say much about the link between evictions and the street
homeless.
183
Interview with John Thomas, Case Worker, Immanuel Baptist Emergency Shelter, in New Haven, Conn.
(May 22, 2006). For a similar storyline, see Melanie Lefkowitz, The Housing Squeeze, NEWSDAY (N.Y.), June
18, 2006, at A4 (“I think the sense out there is, you get evicted, you go directly to a homeless shelter. But for
most people, that's not how it works. You spend a couple of nights with a family member, you spend a week
with someone else,” said Judith Goldiner, a staff attorney with the Legal Aid Society.).
184
Interview with Jose, supra note 138.
185
Interview with Sheryl, supra note 124.
186
Interview with Roxanne, supra note 123.
187
Interview with Jeff, Removed Tenant, in New Haven, Conn. (Apr. 17, 2006)
188
Interview with Bob, supra note 111; Email from Bob, to author (Aug. 30, 2006, 1:32PM) (on file with
author).
36
3. What Happens to Tenants’ Possessions
When the DPW truck pulls away from a removal, tenants have not lost their
possessions.
a. Reclaiming possessions
The DPW truck drives from a removal to the city’s eviction warehouse, where it
deposits all possessions from one property into one bin. Connecticut law mandates that these
belongings remain in the warehouse for at least fifteen days before going to public auction,189
but New Haven notifies tenants that they have twenty-two calendar days from the time of
their removal to retrieve their belongings.190 During this period, tenants may claim their
possessions free of charge by calling Blee and arranging a time to do so.191 The only rules are
that tenants must provide their own moving truck and labor to get the possessions onto the
truck, and tenants must take everything. In 2005, twenty-nine percent of all removed tenants
retrieved their possessions.192 DPW workers can never predict who will retrieve their
possessions—it does not appear to be correlated with the location of the removal or the
quantity or value of goods.193
In practice, the DPW relaxes some rules at this stage for the benefit of removed
tenants. Blee does not strictly enforce the rule about taking everything, for instance. He
discourages what he calls partial-pickups. Nonetheless eight percent of tenants collecting
their belongings in 2005 took only some of their possessions.194 In addition, the DPW gives
tenants significantly longer than the minimum time period to reclaim their goods. Although
189
Supra note 49 & accompanying text.
Notice to Evictees.
191
Most surrounding towns charge the tenant for storage fees. Hamden, for example, places the possessions in
commercial storage and to reclaim his possessions the tenant must pay the storage fee. See Telephone Interview
with Cabral, supra note 53.
192
Eviction Goods Inventories.
193
Interview with Chris and Andy, Eviction Warehouse Employees, Department of Public Works, in New
Haven (Mar. 20, 2006).
194
Id.
190
37
the DPW tells tenants they have twenty-two days, the DPW actually holds a tenant’s
possessions for an average of fifty-five days before auctioning them.195 And tenants benefit
from this delay: Fifty-four percent of tenants reclaiming their possessions in 2005 did so
more than twenty-two calendar days after their removals. On average, tenants claimed their
possessions twenty-seven calendar days after removal.196 This windfall of time is a product
of how auctions are announced and scheduled. The DPW holds only one auction per month.
And it must give the tenants notice of the auction. Since many tenants do not have reliable
addresses, the DPW publishes a notice in the New Haven Register once a month, to which
Blee says a surprising number of tenants respond.197 Then the DPW holds an auction no less
than twenty-two calendar days after this announcement appears in the newspaper. These
delays add together to grant tenants a significantly longer amount of time to reclaim their
possessions than statutes mandate.
Storing tenants’ goods for extra days imposes little marginal cost, if any at all, on the
DPW. The warehouse is one open room that rarely fills up. So the expense of operating the
warehouse is fixed and does not vary with amount of possessions being stored.
b. Auctioning possessions
Items that are not claimed during this holding period must be auctioned to the
public.198 In the middle of every month, on the second or third Monday, the DPW hosts an
auction at its warehouse. The New Haven Register announcement notifying tenants of the
auction serves as the only publicity for this event. From one auction to the next the number of
195
This finding is based on an analysis of a sample of 111 cases chosen throughout the year. Eviction Goods
Inventories; City of New Haven Department of Public Works, Auction Notices (throughout 2005) (on file with
author).
196
To arrive at this number, I analyzed data available on forms tenants must complete upon reclaiming their
possessions. City of New Haven Department of Public Works, General Waiver and Release as to Possessions
(throughout 2005) (on file with author).
197
Interview with Blee, supra note 114.
198
See supra note 57 & accompanying text.
38
bidders varies greatly for no apparent reason: One recent month saw around twenty
bidders199 and the following month only five.200 Quality of goods being auctioned does not
affect turnout, because potential bidders may not preview the lots.
At 10 a.m. sharp Blee starts the auction, leading the bidders—mostly twentysomething minorities—in front of the first bin. Blee calls out the bin number and starts the
bidding at ten dollars. Attendees squeeze between stacks of boxes to get their first look at
what is in the rear of the bin. Blee waits patiently while two or three people inspect the
goods. The majority of goods are in stacks of plain cardboard boxes that bidders are not
allowed to open for the sake of time, so there is an element of guesswork involved. Bidders
try to divine from the exposed items whether the bin is worth bidding on. Blee renews his
call for an opening bid, this time reminding the crowd that they could find anything in the
boxes: a television, computer, microwave. Nobody bids. Blee mutters “Pass” and moves on.
Most bins get the same kind of reaction. Some sets of boxes garner ten dollar bids. Then Blee
gets to bin three, which holds a leather couch and chair. This one sees heavy bidding before
selling to Russ for $250,201 a definite outlier on the high end of the auction price range.
Auction sales data confirm that this bid is unusual. According to the eight months in
2005 for which detailed auction data is available, only twenty-eight percent of all bins
received any bids whatsoever.202 And of those that did sell, the vast majority—eighty-three
percent—went for the minimum bid of ten dollars.203 In 2005, the auction produced only
199
Author’s Personal Observation, Eviction Goods Auction, New Haven Department of Public Works Eviction
Goods Warehouse, 315 Peck St., New Haven, Conn. (Mar. 20, 2006).
200
Author’s Personal Observation, Eviction Goods Auction, (Apr. 17, 2006).
201
Author’s Personal Observation, supra note 199.
202
City of New Haven Department of Public Works, Bins To Be Auctioned (Jan., Feb., Mar., Apr., June, July,
Sept., Oct., 2005) (on file with author).
203
Id.
39
$980 in total revenue.204 According to the law, if a tenant’s goods are sold at auction the
tenant may file a claim for the difference between the price of the goods sold at auction and
the cost to the City for moving and storage.205 But Blee has not handled a single remittance
request in his seven years.206
Data confirm one aspect of this auction to be typical, though. Bins that sell often go to
one buyer: Russ. Everyone at the warehouse knows him. He has been to just about every
auction in Blee’s memory in order to buy goods for the consignment shop he runs out of his
home.207 In 2005, he purchased forty percent of the lots sold at auction.208 According to
anecdotal evidence, whenever a bin contains valuable goods, Russ outbids everyone—the
other bidders at these auctions do not look as though they are affluent, and they are typically
just trying to make purchases for their own apartments for below market price.209 Indeed,
data show that Russ prevails in bidding on the more expensive lots: Even though he bought
only forty percent of the lots in 2005, by dollar amount he accounted for nearly half of all
sales. In a recent auction, Blee watched Russ shatter the previous eviction auction record of
$350 by bidding $1000 on a lot that contained a sixty-inch television.210
Part IV. DEMOGRAPHICS OF REMOVALS IN NEW HAVEN
One might assume that tenants in evictions are poor and landlords are always rich.
This study bears out the former assumption, but challenges the latter.
204
DPW Performance Indicators, (June 2005 and June 2006) (on file with author).
Notice to Evictees. The City takes $195 for moving and fifty dollars for storage.
206
Interview with Blee, supra note 114.
207
Id.
208
New Haven DPW, Bins To Be Auctioned, supra note 202.
209
Author’s Personal Observation, supra note 199; Author’s Personal Observation supra note 200.
210
Interview with Blee, supra note 114.
205
40
A. Tenants
A number of municipal studies throughout the country have shown that “those who
are evicted are typically poor, women and minorities.”211 Data from New Haven support
these conclusions, and reveal the additional insight that removed tenants often have no adult
roommates.
On a municipal level, evictions moderately correlate to median household income.
New Haven sees more removals per rental unit than do most surrounding, wealthier
municipalities (with the exception of Wallingford, an aberration I cannot explain). Graphing
removals per renter-occupied unit against median household income shows an inverse
correlation between median income and removals per unit:
Figure 7212
Median Household
Income (in $1000, 2005)
Removal Rates vs. Income
1.4
1.2
New Haven
Wallingford
1
0.8
0.6
0.4
Woodbridge
Hamden
East Haven
0.2
0
Bethany
0
20
40
60
80
100
120
Removals Per 100 Rental Units (2005)
211
See Hartman & Robinson, supra note 9 (collecting data from seven local studies on eviction to demonstrate a
clear trend that evictees are typically African American or Latino, poor, and female).
212
Total rental units were found U.S. CENSUS BUREAU, FACT SHEETS (2000) for named municipalities,
available at http://factfinder.census.gov/servlet. Removal statistics were reported in telephone interviews.
Telephone Interview with Henry McCully, Director, Wallingford Department of Public Works, in Wallingford,
Conn. (May 23, 2006); Telephone Interview with John Cabral, Jr., supra note 53; Telephone Interview with
Sharon, Clerk, East Haven Department of Public Works, in East Haven, Conn. (May 23, 2006) Telephone
Interview with Gerry Shaw, Clerk, Selectman’s Office, in Woodbridge, Conn. (May 23, 2006); Telephone
Interview with Nancy McCarthy, Town Clerk, Town of Bethany, (May 23, 2006). Data on median household
income comes from U.S. CENSUS BUREAU, FACT SHEETS (2000) for named municipalities, available at
http://factfinder.census.gov/servlet.
41
This scatterplot shows a moderate inverse correlation between wealth and removal rate—r= .68. Surely other factors come into play when explaining the incidence of removals in a given
municipality, but this one appears to have at least some explanatory power in New Haven
County.
Within New Haven, most evictions take place in the low-income neighborhoods.
Appendix 2a shows New Haven census tracts by median household income. Most evictions
cluster in the low-income—or lightly shaded—neighborhoods. The low-income
neighborhoods where removals occur map fairly clearly onto the minority neighborhoods in
New Haven. Appendix 2b shows removals concentrated in Black neighborhoods, such as
Dwight Street and Dixwell; and Appendix 2c shows removals also concentrated in Hispanic
neighborhoods, such as the Hill and Fair Haven. These findings corroborate previous
findings, and in so doing they serve as a reminder that when we discuss what effect removals
have on tenants, we are primarily talking about a group of people who live on the edge of
economic security.
New Haven data also corroborate that evictions disproportionately affect women. Of
the 496 individuals whose gender could reasonably be discerned by their names, 54% were
female and 46% were male.213 New Haven data reveal yet another layer of interesting detail
that may explain this gender disparity: The greatest gender disparity occurs at the singletenant level, where women comprise 57% of individuals removed. The following figure
shows gender data for various levels of occupancy:
213
SUMMARY PROCESS EXECUTIONS (Jan. 1-Dec. 31, 2005).
42
Figure 8214
80
200
48
16
Two
Three
Four
Male
Individuals removed
232
100%
40
20
0
Female
60
One
Number of names on Execution
According to observation215 and interviews216 a number of these women are single mothers—
children are not listed on Executions, so an adult living only with persons under eighteen
appears as a single tenant on an Execution. The strain of providing for children presents a
challenge, and single mothers likely fall short of their rent payments because they have less
time to work and more expenses than do others.217 This explanation of the gender disparity
implies that removals often affect children.
One finding that other reports have not made is that most removed tenants live
without an adult roommate. Executions issued in almost two thirds of cases ending in
removal list only one individual’s name:
Figure 9218
Number of Named Tenants Listed on
Execution Ending in Removal
0 (i.e., only listed “Does”)
1
2
3
4
% of All 2005 Executions Ending in
Removal (n = 379)
3%
64%
28%
4%
1%
214
SUMMARY PROCESS EXECUTIONS (Jan. 1-Dec. 31, 2005).
Interview with Maria, Removed Tenant, in New Haven, Conn. (May 16, 2006); Interview with Roxanne,
supra note 123; Interview with Sheryl, supra note 124.
216
Interview with Ecton, supra note 181; Interview with Solomon, supra note 60.
217
See Interview with Ecton, supra note 181.
218
SUMMARY PROCESS EXECUTIONS (Jan. 1-Dec. 31, 2005)
215
43
Tenants might live with friends or partners whose names do not appear on the lease. If a
landlord wants to remove individuals occupying his apartment and suspects that some people
not listed on the lease co-occupy his property, he must list those individuals as “John Doe”
and “Jane Doe.” Even taking into account these “Does,” data show that a plurality of
removals involve only one adult tenant:
Figure 10219
Number of Tenants Listed on Execution Ending % of All 2005 Executions Ending
in Removal (Count “Does” as Tenants)
in Removal (n = 379)
1
46%
2
22%
3
19%
4
11%
5 or more
3%
Tenants living alone likely face a higher rent burden than do tenants splitting rent payments.
And perhaps these tenants do not try as hard as do tenants living as a social unit—
boyfriend/girlfriend, husband/wife, family—to avoid upheaval.
B. Landlords
Landlords have been vilified by the American public.220 Such popular images rely, in
part, on the assumption that the landlord is the “fat cat who takes unfair advantage of the
little mice who rent from him.”221 But no empirical work has shown whether landlords
involved in evictions are actually “fat cats.” Data below suggest that although most landlords
have more resources than do tenants, certainly not all do.
To determine how sophisticated and well-resourced a plaintiff any given landlord is, we
might look to whether the landlord has representation in his eviction. As mentioned above, a
219
Id.
See, e.g., Welfeld, supra note 148, at 110 (recapping a Saturday Night Live skit in which a tenant writes a
poem about killing his landlord).
221
Id. See also, Small Landlords, supra note 148 (“Many people . . . consider even the small owner ‘a land
baron’—greedy, uncaring, with money to burn—when the reality is he's just another Joe Schmoe or an Abdul
trying to make a living.”).
220
44
lawyer costs in the ballpark of $1000 for a typical eviction.222 So this is a cost that less
wealthy landlords would likely avoid. Although the existence or absence of legal
representation does not provide a perfect indicator of wealth, it offers a rough understanding
of a landlord’s resources. Data show that most types of landlords hire lawyers for every
eviction, but that “mom and pop” landlords only do so only about a third of the time:
Figure 11223
Landlords
HANH
Cooperatives
Partnerships/ corporations/ LLCs
Individuals
Other Actors Initiating Evictions
Banks/ mortgage companies
Total removals
in 2005
37
5
156
153
25
Percentage of cases in which
evictor had representation
100%
100%
97%
35%
100%
Thus, in cases involving institutional or organized landlords, tenants are usually facing off
against a relative “fat cat” who likely has financial and legal resources. But when a tenant
faces a “mom and pop” landlord, more often than not the two parties are on relatively equal
footing in that both have neither the resources to secure a lawyer nor the legal sophistication
that comes along with representation. This finding challenges the common assumption that
landlords are “fat cats,” and portrays “mom and pop” operations in a more sympathetic light.
Part V. WHY TENANTS GET TO A REMOVAL
As shown above, an overwhelming majority of evictions result from nonpayment of
rent.224 A central question then is why tenants fail to pay rent and get removed: Can they
honestly not pay rent or are they gaming the system? An understanding of why tenants get to
a removal informs how much sympathy (and perhaps legal protection) tenants deserve.
222
See supra note 160 & accompanying text.
SUMMARY PROCESS EXECUTIONS (Jan. 1-Dec. 31, 2005).
224
Supra Figure 1.
223
45
A. Honest Reasons
Since evictions primarily affect poor individuals,225 it is reasonable to assume that
most removed tenants truly could not pay rent. Anecdotal data support this assumption, and
provide insight into the circumstances that lead tenants to miss rent payments.
1. Losing Income
Many removed tenants lose sources of income just before their evictions. One tenant
was working a seasonal job and could not make ends meet when the off-season came;226
another fell behind on payments when her live-in boyfriend, who was splitting rent payments
with her, went to prison and left his girlfriend with the full rent burden227 (a surprisingly
common set of facts, according to a caseworker at a women’s shelter228); yet another lost her
apartment when Section 8 discontinued payments to the landlord because the apartment had
too many defects to pass the annual Section 8 inspection.229 Such stories of genuinely not
being able to pay rent come as no surprise given the economic demographics of New Haven:
Over a quarter of the city’s population lives in poverty;230 nearly a third of all housing units
in the city are subsidized;231 and nearly half of tenants in the city spend over thirty percent of
household income on housing,232 a proportion considered to be at the limit of affordability.
225
Supra Section IV.A.
Interview with Steve, supra note 187.
227
Telephone Interview with Jessica, Removed Tenant, in New Haven, Conn. (Aug. 28, 2006).
228
Interview with Ecton, supra note 181.
229
Interview with Roxanne, supra note 123.
230
U.S. CENSUS BUREAU, 2005 AMERICAN COMMUNITY SURVEY: SELECTED ECONOMIC CHARACTERISTICS,
NEW HAVEN CITY, CONNECTICUT (2005), available at http://factfinder.census.gov/servlet (reporting that 27.2%
of all people in New Haven had incomes below the poverty level in the previous year).
231
CONNECTICUT DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT, AFFORDABLE HOUSING
APPEALS LIST (2005), available at
http://www.ct.gov/ecd/cwp/view.asp?a=1105&q=251248&ecdNav=|#Housing (30%)
232
Id. (46%). See generally, Janny Scott and Randal C. Archibold, Across Nation Housing Costs Rise as
Burden, N.Y. TIMES (Oct. 3, 2006) (“The burden of housing costs in nearly every part of the country grew
sharply from 2000 to 2005.”)
226
46
These stories and statistics suggest that a large portion of people affected by evictions and
removals genuinely lack the wherewithal to avoid this legal process.
2. Mental Illness
Another set of tenants fail to pay rent not necessarily because they lack income, but
because they cannot conform their behavior to what is expected of a reliable tenant. Scholars
and policy-makers often allude to the link between mental health and homelessness.233 But
nobody has examined mental illness in removed individuals.
Doing so reveals a fairly high incidence rate of mental illnesses amongst removed
persons. Somewhere between nine to thirty-eight percent of all individuals removed in 2005
have been diagnosed with a mental illness in the Connecticut mental health system in the past
decade.234 These individuals received the following diagnoses:
Figure 12235
Diagnostic Category
Axis I (Psychotic illnesses.
E.g., depression, bi-polar)
Axis II (Personality disorders.
E.g., obsessive-compulsive,
Percentage of Removed Individuals
Receiving Diagnosis
Range (Midpoint)
6-23% (14.5%)
2-10% (6%)
233
See, e.g., MICHAEL ALLEN, SEPARATE AND UNEQUAL: THE STRUGGLE OF TENANTS WITH MENTAL ILLNESS
TO MAINTAIN HOUSING (1996); FEDERAL TASK FORCE ON HOMELESSNESS AND SEVERE MENTAL ILLNESS,
OUTCASTS ON MAIN STREET (1992); PAUL KOEGEL ET AL., “The Causes of Homelessness,” in HOMELESS IN
AMERICA 24, 31 (Jim Baumohl ed., 1996); NATIONAL COALITION FOR THE HOMELESS, MENTAL ILLNESS AND
HOMELESSNESS: NCH, FACT SHEET #5 (2006), available at
http://www.nationalhomeless.org/publications/facts/Mental_Illness.pdf; National Resource and Training Center
on Homelessness and Mental Health, Publications, available at
http://www.nrchmi.samhsa.gov/publications/default.asp (collecting sources on mental illness and homelessness)
234
CONNECTICUT DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES DATABASE (2006). To
determine the prevalence of mental illness in removed individuals, I commissioned staff at the Connecticut
Mental Health Center to compare a database of all mental health patients diagnosed in Connecticut with my list
of 521 individuals removed in 2005. Because I could provide only names as identifying information for
removed individuals, this exercise could not be precise. A number of individuals had common names, so it was
unclear whether to count them as a hit or not. To resolve this problem, researchers created a range, with the low
end of the range not counting any individuals when a name appeared more than once in the mental health
database, and the high end of the range counting every individual whose name appeared anywhere in the mental
health database.
235
Id. Totals do not equal the stated range—forty-seven to 198—because some individuals have multiple
diagnoses.
47
paranoid, schizoid)
Substance Abuse (Drug or
alcohol addictions)
5-26% (15.5%)
These data reveal only individuals with identified mental illnesses, though, and a number of
mental illnesses go undetected. Looking to other potential indicators of mental illness, such
as arrest, therefore, might provide a more complete picture. Or a more refined estimate might
rely on those evaluated for competency to stand trial, since that designation indicates
someone suspected of presence of mental illness:
Figure 13
Activity
Percentage of Removed Individuals
Range (Midpoint)
Arrested by New Haven
25-70%
Police Department236
(48%)
Evaluated for Competence
13-29%
to Stand Trial237
(21%)
These data do not show how often mental illnesses actually led to removals in 2005, but they
do show that some significant portion of removed tenants likely suffer from a mental
illnesses that may impede efforts to avoid removal.
3. Using Tenant Self-help to Destructive Effect
Tenants only rarely become defendants in evictions because they use the self-help
mechanism of withholding rent to send a message to the landlord about the conditions of the
premises. Steven Gunn found that forty-two percent of all tenants evicted asserted the
landlord’s failure to repair substandard housing conditions as the reason for nonpayment of
rent.238 But a legal aid lawyer reports that tenants offering this explanation typically raise no
complaints about conditions until the eviction begins; and only once the eviction starts does
236
CRIMINAL JUSTICE SYSTEMS DATABASE (2006).
CONN. MENTAL HEALTH CENTER DATABASE (2006).
238
Gunn, supra note 11 at 398 tbl.8.
237
48
the tenant assert this in his defense.239 Indeed, Maria admitted exactly this progression of
events: She missed rent payments, the landlord began an eviction, then she complained about
insufficient heating.240 Few tenants actually cause their own eviction by withholding.
4. Gentrification
Finally, some tenants miss payments because they cannot keep up with price
increases. This happens especially in gentrifying neighborhoods, where a landlord raises rent
either simply because his property has increased in value, or because he wants to push the
tenant and renovate the apartment out in order to rent it at a significantly higher price.241
None of the tenants interviewed experienced this. Although one tenant fears that these types
of evictions are on the rise in the Hill neighborhood where landlords are trying to capitalize
on Yale’s recent growth,242 neither interviewees nor data confirmed this trend.
B. Gaming Reasons
Some tenants appear to make it to the removal phase for gaming reasons. Likely
gaming reasons include (a) seeking out perverse incentives in the housing assistance system
tied to being removed from an apartment or (b) just behaving as a “bad apple” who intends to
live rent-free for a few weeks or months while the summary process unfolds. Since the
systemic incentives have dried up in recent years, most who now game the system do so for
the latter reason.
239
Interview with Shelly White, supra note 54.
Interview with Maria, supra note 215. But see Telephone Interview with Lynne, Removed Tenant, in New
Haven, Conn. (Aug. 22, 2006). Lynne reported withholding rent to send the landlord a message when she found
that everyone in the building did cocaine in the common areas and the landlord was not addressing the situation.
241
For a depiction of evictions resulting from gentrification in the Bay Area during the internet boom, see
BOOM: THE SOUND OF EVICTION (Whispered Media 2002).
242
Interview with Sheryl, supra note 124.
240
49
1. Seeking Systemic Incentives
At least one author has claimed that state and local housing programs create perverse
incentives to get evicted by offering subsidies to tenants on the condition that they have been
evicted in the past.243 Indeed, that may have been the case years ago, but no longer. Over the
years, assistance programs have taken measures to reduce systemic incentives for tenants to
get evicted.
The largest actor in New Haven housing assistance, and therefore the first place to
look to understand how systemic incentives shape tenant behavior, is the Housing Choice
Voucher Program (commonly known as “Section 8”) administered by the Housing Authority
of New Haven (HANH). In the Section 8 program tenants pay thirty percent of their income
for rent and federal funds cover the balance of their rent.244 HANH provides 4500 vouchers
to tenants in New Haven,245 constituting fourteen percent of New Haven’s 33,167 renteroccupied units, and it has a 1,000-person wait-list246 (these numbers do not include statistics
for RAP and T-RAP vouchers247). Selection from the wait-list used to depend on a range of
preferences, including homelessness.248 Given the high demand for these vouchers,
prioritizing homeless persons meant that, in practice, HANH never served anyone until they
became homeless.249 This fact created an incentive for people to make themselves
243
Daines, supra note 11, at 23.
CONN. AGENCIES REGS. § 17b-804-1 (2004).
245
Interview with Maureen Novak, Special Assistant to the Deputy Executive Director, Housing Authority of
the City of New Haven, in New Haven, Conn. (Nov. 17, 2005). The utilization rate for these vouchers typically
falls just below ninety percent. Interview with Solomon, supra note 88.
246
Interview with Maureen Novak, Special Assistant to the Deputy Executive Director, Housing Authority of
the City of New Haven, in New Haven, Conn. (Nov. 17, 2005). The Section 8 waiting list last opened for the
month of April 2005. In that month, 8,000 people signed up for the list.
247
The Connecticut Department of Social Services contracts John D’Amelia & Associates to administer its
rental assistance program. Repeated calls to this company were not returned.
248
Id.
249
Id.
244
50
homeless,250 and one way to do that was to get evicted and removed. Now selection for
vouchers depends on a “pure waiting list.”251 So having been evicted does not help applicants
get a voucher; and, in fact, being evicted may make it harder to find an apartment once a
tenant receives a voucher, since landlords perform credit and judgment checks and an
eviction would be a legitimate reason for refusing to rent.252
Another player in New Haven housing assistance that could shape tenants’ behavior
with incentives is Community Mediation’s Eviction and Foreclosure and Prevention Program
(EFPP, commonly known as the “Rent Bank”). EFPP pays the back rent for qualified tenants
in danger of being evicted.253 If Community Mediation prioritized those tenants with the
most imminent evictions, then we might expect to see savvy tenants trying to make it to the
tail-end of an eviction simply to get the Rent Bank to pay its rent. In the past, tenants likely
gamed EFPP, but no longer. Ten years ago, Community Mediation required only that the
tenant produce a letter from a landlord saying the tenant was behind in rent. Tenants had an
interest in not paying rent; and their landlords had an interest in getting paid the full rent. So
both parties could conspire to represent their situation in such a way that would get EFPP to
pay rent to the landlord. Indeed, the executive director remembers seeing a tenant and a
landlord huddled over the hood of their car jointly writing a letter testifying to the tenant’s
nonpayment. When they came in the office, the executive director felt they were not using
the Rent Bank for the right reasons.254 Since that incident, Community Mediation has
implemented eligibility requirements that decrease the likelihood of a tenant gaming the
250
Id. Novak says she has heard stories of people doing exactly this.
Id; Email from Robert Solomon, Chairperson of the Board of Commissioners, Housing Authority of New
Haven, to author (May 24, 2006 8:53AM).
252
Email from Robert Solomon, Chairperson of the Board of Commissioners, Housing Authority of New
Haven, to author (May 24, 2006 8:53AM).
253
CONN. AGENCIES REGS. § 17b-804-1 (2004).
254
Interview with Charlie Pillsbury, Executive Director, Community Mediation, in New Haven, Conn. (May 19,
2005).
251
51
system. It requires: (1) that applicants have a gross family monthly income of less than sixty
percent of the state median income adjusted for family size; (2) that applicants’ rent is less
than or equal to sixty percent of their gross family monthly income; and (3) that applicants
show they have experienced a severe hardship that prevented rent payment and that is not
likely to recur, something case specialists investigate through interviews.255 These criteria
ensure that the Rent Bank disperses money to individuals who genuinely need it.256 One
indicator that individuals are not gaming this system is that caseworkers see very few repeat
applicants.257 And if tenants are able to game this system, they do so in small numbers: only
eighty-two tenants received EFPP assistance in 2005.
2. Taking advantage of the length of summary process
Some tenants appear to game the system by simply not paying rent and then living
rent-free for the duration of the summary process. This practice generally saves tenants at
least two rent payments,258 which, for some, outweighs whatever potential damage this
practice does to one’s reputation with future landlords. It is reasonable to assume that
individuals who have learned how to game the system in this way will likely become repeat
players.259 If someone with limited means has found a way to secure, say, a year of housing
for the cost of nine months’ rent (plus a security deposit, perhaps), then that individual will
likely use this “discount” somewhat regularly.
Nearly everyone involved in New Haven removals has a story about repeat players.
When asked if she has seen the same individuals as defendants in multiple eviction actions,
255
Community Mediation, Eviction Prevention and Foreclosure Program (unpublished pamphlet) (on file with
author).
256
Interview with Pillsbury, supra note 254.
257
Id.; Telephone Interview with Urrutia, supra note 129.
258
See supra notes 150 & 155 & accompanying text.
259
For a discussion of spending strategies income-strapped individuals employ, see KATHRYN EDIN & LAURA
LEIN, MAKING ENDS MEET: HOW SINGLE MOTHERS SURVIVE WELFARE AND LOW-WAGE WORK (1997).
52
Housing Court Clerk Suzanne Colasanto blurts out “God yes!” then rattles off three or four
names.260 She gets calls from landlords asking whether an individual has ever been evicted,
and occasionally she does not even have to look up the names because she knows they have
been evicted multiple times. State Marshal Peter Criscuolo remembers arriving at one
tenant’s apartment to remove her only to find that most of her belongings were still packed in
boxes from her last removal just six months earlier.261 Likewise, a mover remembers arriving
at one tenant’s apartment to find that he had moved her belongings from the eviction
warehouse into that apartment within the past year.262 Data bear out these stories of repeat
players: Of the first 244 individuals263 removed from New Haven apartments in the first three
months of 2005, seventy-seven—or thirty-two percent—were defendants in more than one
summary process action between June 2002 and August 2006.264 These repeat players appear
to inflict losses on individuals and corporate landlords in the highest rates—roughly a third of
tenants renting from these types of landlords are repeat players:
Figure 14265
Landlords
Individuals
Partnerships/ corporations/ LLCs
HANH
Cooperatives
Other Actors Initiating Evictions
Banks/ mortgage companies
Total individuals in
sample removed by
this type of landlord
100
116
22
6
13
260
Percentage of
individuals who were
repeat players
36%
33%
5%
0%
15%
Interview with Suzanne Colasanto, Clerk, New Haven Housing Court, in New Haven (May 18, 2006).
Interview with Criscuolo, supra note 112.
262
Interview with Chris, Mover, Crosby’s Moving Company, in New Haven, Conn. (May 16, 2006).
263
From January 1, 2005, to July 5, 2005 272 individuals got removed, but repeat player data is only available
for 244 of those individuals. This data excludes twenty-eight individuals for one of two reasons: either (1) the
electronic database lacked information on them, or (2) it was too difficult to confirm the tenant was a repeat
evictee because the database identifies tenants only by name and tenants with common names were, therefore,
likely to appear as repeat evictees even if they were unique evictees.
264
ONLINE HOUSING COURT DATABASE.
265
Id.; SUMMARY PROCESS EXECUTIONS.
261
53
Although data for other types of landlords are too thin to yield conclusions, they point toward
findings on might expect. The Housing Authority likely sees few repeat players because it
conducts thorough credit checks.266 Likewise for cooperatives, since if one cooperator fails to
pay his share of the mortgage others have to make it up.
Surely some of these repeat players deserve to be counted in the category of
individuals evicted for “honest” reasons, but anecdotal evidence suggests that some portion
of these repeat players are, in fact, gaming the system. The clerk and the housing specialist at
the New Haven Housing Court explain that a number of repeat players they see do not appear
to be the most desperate defendants who have repeatedly fallen on hard times. Instead, they
describe an extremely attractive couple who are both employed by the City, “appear to be
church-goers and would be mistaken for wealthy landlord-types” but come in to the court
every few months and lose as defendants in evictions; or there is the couple who make a
habit of renting nice houses with pools in outlying neighborhoods or towns, then inevitably
fail to pay their rent after a few months, get evicted and move into another house.267
Data show that repeat players understand better than non-repeat players how to draw
out the eviction process. In total, thirty-seven percent of all evictions started in 2005 resulted
n Executions.268 By contrast, sixty-nine percent of all repeat tenants had made it to the
Execution phase in their previous removals.269 Perhaps repeat players simply know how to
handle an eviction the second time, but this significant differential suggests that some portion
of repeat tenants intend to game the system and live rent-free as long as possible. Further
evidence for the assertion that repeat players have learned to game the system comes in the
266
Interview with Maureen Novak, supra note 246.
Interview with Colasanto, supra note 260; Interview with Texeira, supra note 41.
268
ONLINE HOUSING COURT DATABASE.
269
Id.
267
54
form of default judgments: whereas seventy-two percent of non-repeat players in this sample
had default judgments entered against them, only fifty-six percent of repeat players lost on
default judgments.270 This means the summary process moves somewhat more slowly for
repeat players, on average. It is unclear whether repeat players better avoid default judgments
simply because their experience allows them to understand the eviction process, or if they
avoid default judgments because they are strategically trying to extend their “discount”
period. Nonetheless, these data show that repeat players know how to live rent-free longer
than do non-repeat players.
VI. LESSONS LEARNED
The above account of removals not only helps explain how the law affects people’s
lives at this key stage in landlord-tenant relations, but also yields insight into where the
system works well and where it could be improved. These lessons apply most directly to
New Haven, but might easily be extended.
A. What Works Well
In many respects, the legal system works well when a landlord-tenant relationship
breaks down entirely. At the scheduling phase, fairly strict service requirements effectively
alert tenants of their removal. During removal, granting the state a monopoly of power and
excluding the landlord from the removal effectively limit the amount of violence at the end
of this high-stakes process. The marshals’ practice of inventorying all possessions ensures
transparency in the handling of possessions, which both limits the amount of litigation
following removal day, and ensures that nobody handling the tenant’s possessions steals
from the tenant. The fact that the marshals and DPW coordinate their eviction schedules
270
Id.(sample includes the first 244 individuals removed in 2005).
55
means that tenants’ possessions do not at any point sit on the curb. This eliminates
opportunities for tenants’ belongings to be stolen. Perhaps more importantly, it does not
humiliate the tenants by putting on display all their personal possessions. Then once the
goods leave the property, the systemic delays between a removal and an auction gives tenants
extra opportunity to retrieve their goods without significantly increasing the cost of storage.
Taken as a whole, these practices make the removal process effective and somewhat more
humane than might be assumed. Indeed, actors on all sides of the process—a legal aid
lawyer,271 a landlord,272 and a marshal273—reported general satisfaction with the system and
no desire for major changes.
B. Where the System Could Improve
Removals occur surprisingly often in New Haven, and they create substantial losses
for both the landlord and the tenant beyond the costs associated with the first phase of
evictions. Although many parts of this process work well and some “customers” from all
sides of the removal report satisfaction, parts could still be improved. Reforms should be
guided by three concerns common to legal reform: efficiency, process, and equity. The first
generally benefits the landlord, while the latter two generally benefit the tenant. Balancing
the tension between these ensures that reforms will be even-handed.
1. Efficiency Improvements
The legal system should aim to prevent removals altogether. But when tenants must
be removed, as inevitably they will, the system should return apartments to landlords quickly
after the legal battle ends.
271
Interview with White, supra note 37
Interview with Cowie, supra note 168.
273
Interview with Miller, supra note 76.
272
56
First, preventing a removal altogether would decrease administrative costs by saving
the landlord from paying the incremental cost of almost $1000274 to remove a tenant, and
saving the municipality the time and expense of picking up the tenant’s belongings. One way
to prevent removals is to create disincentives to get removed. As currently structured,
removals provide moving and storage services to tenants. In New York City, tenants wanting
to retrieve their goods must pay landlords the cost of moving and storage.275 Whereas half of
all New Haven tenants receiving an Execution remain in their property until removal, in New
York four out of five tenants receiving Executions move out.276 Given that New Haven’s
rental unit vacancy rate is almost double New York City’s—6.4%277 versus 3.6%278—ease of
finding another apartment does not explain the difference in tenants’ behavior. Rather,
incentives linked to the storage policy likely affect tenants’ calculations. A new system could
create a cost-sharing scheme: Most simply, the tenants and the DPW could each be
responsible for half of expenses; or perhaps the tenant’s relative wealth might be taken into
account by indexing his share of costs to his monthly rent burden. Such a scheme would
decrease the tenant’s incentives to get to the end of a removal, because it would eliminate
free moves. Therefore, this reform would likely achieve the efficiency goal of decreasing the
total number of removals. But this system also takes into account equity concerns as it would
still place fewer burdens on poor tenants than do most jurisdictions.
Second, speeding up removals would decrease the amount of rent landlords lose in a
given eviction and would decrease the moral hazard of tenants living rent-free. Indeed, the
274
See supra Figure 6.
See supra NEW YORK CITY CIVIL COURT HOUSING PART, supra note 64.
276
Rebecca Webber, Issue of the Week: Evictions, GOTHAM GAZETTE, Nov. 12, 2001, available at
http://www.gothamgazette.com/iotw/affordhousing/doc1.shtml.
277
U.S. CENSUS BUREAU, 2005 AMERICAN COMMUNITY SURVEY: SELECTED HOUSING CHARACTERISTICS, NEW
HAVEN CITY, CONNECTICUT (2005), available at http://factfinder.census.gov/servlet.
278
U.S. CENSUS BUREAU, 2005 AMERICAN COMMUNITY SURVEY: SELECTED HOUSING CHARACTERISTICS, NEW
YORK CITY, NEW YORK (2005), available at http://factfinder.census.gov/servlet.
275
57
immediate-past president of the New Haven Landlord Association reports that most
complaints he received about the removal system during his tenure related to how slow
marshals and the DPW were to remove a tenant who had been served with an Execution.279
One simple, albeit expensive, way to speed up all removals would be for the DPW to buy a
new truck and hire more employees.
If the City cannot speed up all removals but instead institutes a “fast track” program
to speed up selected removals, it should not base priority on payment of an expedition fee as
it does with its sidewalk repair program. This would contravene equity concerns as those
landlords who have the slimmest margins and, therefore, need the fastest removals in order to
keep up with their mortgage payments are precisely the landlords who would least likely be
able to pay to participate in this priority system (although, the details would matter here,
because if the DPW can afford to set a fee smaller than the additional rent a landlord would
lose in a non-expedited removal, small landlords may find it cheaper, overall, to pay the
expedition fee than not to pay that fee). Instead, the City might consider giving “fast track”
privileges on the basis of how few apartment units a landlord owns. Small landlords cannot
prevent evictions as well as can large landlords, because they often do not have the knowhow or the resources to screen tenants.280 And, judging by the fact that the majority of “mom
and pop” operations do not hire attorneys,281 they do not have the resources to absorb the
financial losses of a removal. How to define small landlords could be debated, but one
proposal would be to say all landlords who own five units and fewer get scheduling priority
over landlords owning more than five properties. Critics might argue that this would unfairly
279
Interview with Candelora, supra note 44.
See Interview with Lauria, supra note 159; Stephanie O’Neill, Tenants from Hell, L.A. T IMES, Aug. 8, 1993,
at K1.
281
See supra Figure 11.
280
58
burden large landlords. But data suggest that large landlords have a higher tolerance for
delays at this point in the process.282 Creating laws that treat small landlords differently from
large ones would certainly create transaction costs, but it is possible and has been done
before, namely in the federal Fair Housing Act of 1968.283 Decreasing the losses on small
landlords would encourage more individuals to enter the rental market as landlords, which
would increase the total housing available.
2. Process Improvement (Dignity Concerns)
Although the proposed system might sound harsh on tenants with its higher storage
costs and its speedier removals, the system should still aim to limit dignitary harms284 to
tenants. The best way to do this would be to help tenants relocate before the removal and
save them the humiliation of being kicked out of their home.
Community agencies could focus more resources on assisting tenants in the removal
phase. A number of agencies try to prevent evictions, or to resolve them before the removal
phase, but none specifically assist tenants once they have received an Execution.285 Tenants
might be more likely to seek or accept assistance at this point because it has become clear
that they lost the legal battle for possession. An agency would be able to target its clients
fairly easily, by contacting the housing court each week and checking where Executions have
been served. The agency could then visit the tenant’s home and if the tenant does not appear
to understand what is happening—because they do not speak English, suffer from mental
health issues, or lack information on evictions—the agency could demystify the process.
282
See supra Figure 3.
42 U.S.C. § 3603(b) (exempting small landlords from statutes outlawing discriminatory rental and sales
practices).
284
See supra notes 146-147 & accompanying text.
285
Telephone Interview with Cristina Urrutia, Housing Case Manager, Community Mediation, in New Haven,
Conn. (Dec. 5, 2006).
283
59
Then the agency could assist these tenants by helping them locate affordable housing. Not
only would this preserve the tenant’s dignity, but also it would benefit landlords and
municipalities by saving them removal costs. The Community Mediation Executive Director
is optimistic about such an organization, saying it would both fill a gap in services and would
provide a benefit to a wide range of constituents.286 Surely not all tenants at this stage are
able to or want to move immediately to another property for which they must pay rent, but
some sizeable proportion of tenants would likely accept this assistance and would succeed at
avoiding removal.287
This proposal might be criticized as creating additional incentives for tenants to stay
in their apartment until these informal forms of assistance kick in. But the current system
already creates incentives to stay in an apartment until the bitter end of an eviction, so this
proposal would likely not alter a tenant’s calculations about how to act; but it would reduce
the costs to all actors involved.
3. Equity Improvement
A process so widely associated with poverty as is the removal process should evince
some concern for the poor. Perhaps the most explicit way the City could do this is in how it
distributes unclaimed goods. As it stands, the auction benefits few parties other than Russ. It
neither effectively redistributes goods to those in need, nor recoups much money for the
DPW. Rather than auctioning goods, the DPW should unpack the boxes, separate out
valuable items and give these items away. Perhaps it could be first-come-first-served with
each person able to take only one item per turn. Doing this would require the DPW to forego
286
Interview with Charlie Pillsbury, Executive Director, Community Mediation, in New Haven (Dec. 12, 2006).
For an example of a tenant who wanted to move, but could not find a new apartment in the limited time she
had to search after work hours, see Interview with Roxanne supra note 123.
287
60
only a negligible amount of revenue. And it would allow the City to build the good-will that
comes with gift-giving amongst those who are likely to be marginalized.
This program has a precedent. In the recent past, before sending the contents of
unsold bins to the landfill DPW employees would extract valuable items—coffee tables, fans,
chairs, bicycles. Then Blee would display these items in the eviction warehouse and give
them to anyone who inquired. Between 2001 and 2005, Blee gave goods away to 1046
individuals,288 primarily single mothers, former inmates reentering society, and the
temporarily jobless.289 And it was not rare for the recipients of these giveaways to be
removed at some point. Blee marked all items he gave away, and occasionally saw these
markings when he collected items at a later removal.290 Through this initiative, then, the City
was mitigating the cruelty of the removal process, albeit somewhat indirectly. The City
ceased this post-auction giveaway program, because it wanted to avoid liability for items it
gave away,291 but it would do well to replace the auction with some reincarnation of it—
perhaps by allowing students to establish a volunteer agency to distribute these goods.292
VII. CONCLUSION
Eviction laws must balance significant interests against one another: on the one hand,
the landlord’s property interest in his apartment and his financial interest in reclaiming it in a
speedy manner; on the other hand, the tenant’s “personhood”293 and possessory interests in
retaining his home. These interests sharpen at the end of an eviction action. Different systems
have attempted to balance these interests in various ways. The common law, for example,
288
DPW Performance Indicators, (June 2001, June 2002, June 2003, June 2004 June 2005, June 2006) (on file
with author).
289
Interview with Blee, supra note 114.
290
Id.
291
Telephone Interview with Frank Blee, Eviction Warehouse Manager, New Haven Department of Public
Works (Dec. 13, 2006).
292
Interview with Solomon, supra note 88.
293
Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 993-96 (1982).
61
placed its thumb on the side of the landlord, due to his superiority of estate.294 During the
revolution of landlord-tenant law in the mid-twentieth century, laws began to make a more
sincere effort to strike a balance between the two sides of the equation, and even favor the
tenants’ interests in some cases.295 Compared to Western European countries, though,
summary process laws in the United States still appear to be quite harsh on tenants—in
Ireland, for example, landlords must wait until one year’s rent is in arrears before initiating
an eviction.296 But laws do not tell the full story.297 To truly understand how our current legal
system treats parties involved in evictions, we must examine how the process unfolds in
practice, whom it affects and how it affects them.
The total breakdown of a landlord-tenant relationship inevitably produces significant
losses. Which losses can be avoided and where losses should lie are regular topics of debate
in the Connecticut legislature298 and will continue to be debated by legislators, community
agencies, lawyers and academics in the future. This study provides a starting point for these
debates by elucidating how removals currently work, what losses they entail, and how the
system might improve.
294
Karl Manheim, Tenant Eviction Protection and the Takings Clause, 1989 WIS. L. REV. 925, 926 (1989).
Id., at 51-52; Manheim, supra note 294, at 926.
296
THE LAW REFORM COMMISSION, GENERAL LAW OF LANDLORD AND TENANT 181 (2003).
297
See, e.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991).
298
Connecticut legislators, for example, sought to revise the state’s removal laws during both the 2004 and 2006
sessions. Both times, legislators proposed to allow the landlord to take immediate possession of and dispose of
any belongings tenants leave behind. S. Res. 232, 2004 Leg., Reg. Sess. (Conn. 2004); S. Res. 361, 2006 Leg.,
Reg. Sess (Conn. 2006). Academics, advocates and interest groups on both sides of the issue weighed in on the
proposals. Hearing on S. Res. 361 Before the House Judiciary Committee, 2006 Leg., Reg. Sess., Mar. 3, 2006
(Conn. 2006), available at http://www.cga.ct.gov/2006/JUDdata/chr/2006JUD00303-R001300-CHR.htm.
295
62
APPENDIX 1: Methodology
This paper relies heavily upon primary source and field research. In order to be as
transparent as possible about the strengths and weaknesses of this research, this Appendix
outlines the methodology used to collect key pieces of data.
Eviction Documents
The removal phase of evictions generates a number of legal documents. Through
Freedom of Information Act (FOIA) requests, I accessed all such documents produced in the
City of New Haven in 2005:

Executions: I gleaned from Executions served on removed tenants the names of
parties (including landlords’ attorneys), date of issuance, and address of the premises.
Using this information, I gathered further data about the legal process that lead to
eviction through the Online Housing Court Database. This database details the names
of parties, presence of attorneys on both sides, and procedural history such as whether
the landlord won a default judgment. Furthermore, this database catalogues previous
eviction actions against any given tenant.

Eviction Goods Inventories: I relied on the marshals’ inventories of tenants
belongings to learn the date of the removal, whether the tenant was present at the
removal and a list of all items left behind by tenants.

Auction records: I used auction records to determine who attended the auction, which
bins were sold, who bought those bins, and for how much.
Personal Observations:
To contextualize the data gleaned from legal documents, I observed key parts of the
removal phase:
63

Removals: I observed thirteen residential removals. These were arranged on random
dates—either I would call a marshal or Frank Blee, the manager of the DPW’s
eviction warehouse, to arrange this, or they would call me when they scheduled
removals—so there is no reason to believe that this sample was subject to selection
bias. During every removal, I was granted full access and was able to observe what
happened inside and outside the premises: the marshal’s interaction with the tenant,
the state of the apartment before being packed, the movers’ conduct in packing the
belongings, the tenants’ reactions to the removal, and the transfer of belongings to the
DPW truck. Commercial removals are outside the scope of this paper, but for
comparative purposes, I observed one such removal.

Property Pick-ups: Pick-ups are often scheduled just minutes in advance, so I could
not arrange to observe many of these. Nonetheless, I observed two tenants reclaim
their belongings at various points when I was at the eviction warehouse.

Auctions: I observed three monthly auctions, two in the spring and one in the fall.
Blee confirms that these months were not particularly skewed in any way.
Interviews:
To supplement what I learned from the legal documents and personal observations, I
interviewed a number of actors involved in all parts of the removal phase:

Tenants and Their Attorneys: I interviewed fifteen tenants, whom I found in a variety
of ways. I approached some tenants at their removals, found others at shelters, sent
interview requests to removed tenants at their last known addresses, posted
advertisements in the New Haven Advocate and on Craigslist.org. Overall, this
sample may present a selection bias, as my methods likely excluded the most
64
desperate tenants who end up living on the streets after being evicted, those who are
not able to be reached by postal mail or advertisements and do not check in to a
shelter. In addition to speaking directly to tenants, I also spoke to five legal services
or legal aid attorneys who represent tenants in evictions.

Landlords and Their Attorneys: I interviewed four landlords, including the immediate
past president of the New Haven Landlord Association. When landlords secure
representation, they often deputize the attorney to handle the entire eviction, so the
attorneys often know more about the experience of handling an eviction than do the
landlords. With this in mind, I interviewed three landlords’ attorneys. This total
sample includes both individual and corporate landlords owning from two to over 200
apartments. I located these landlords primarily by cold calling names from
Executions.

State Marshals: I interviewed five of the eleven state marshals based in the City of
New Haven. Collectively, these marshals have over a century of experience with
removals. I was referred to these marshals by landlords’ and tenants’ lawyers, or by
other marshals. Often these interviews took place while the marshal was supervising a
removal.

Department of Public Works: I conducted a number of interviews with the manager
of the eviction warehouse and the City of New Haven DPW staff who pick up
tenants’ belongings from evictions. In addition, I spoke with staff at departments of
public works or their counterparts in eight other municipalities to gather comparative
data.
65

Housing Court: I interviewed the New Haven Housing Court Clerk a number of
times, and also interviewed an assistant clerk, and a housing specialist.

Community Agencies: I spoke to employees of a number of agencies that might play
a role in tenants’ experiences, including the Executive Director and caseworkers at
Community Mediation (administrators of the Rent Bank), the Executive director and
caseworkers at the three largest shelters in the City of New Haven, and staff members
at the Housing Authority of New Haven, Connecticut Department of Children and
Families, Connecticut Department of Social Services, and National Student
Partnerships.
Other Sources of Data
In addition, I relied on primary data from other sources that shed light on the removal
process:

Mental Health Client Listings: In order to understand the link between mental health
and removals, I relied on client listings in the databases of the Connecticut Mental
Health Center, the Connecticut Department of Mental Health and Addiction Services,
and Criminal Justice Solutions. For privacy reasons, others accessed this data,
compared it to a list of removed tenants I generated, and reported findings to me.

Shelter Intake Records: In order to understand the link between removals and
homelessness, I secured shelter intake data, including the name of the client and the
date of check-in. Again, for privacy reasons, others accessed this data, compared it to
my list of removed tenants, and reported findings to me.
66

New Haven Police Department Incident Logs: In order to understand how often
removals became violent or required police assistance, I secured a copy of the New
Haven Police Department’s incident log for landlord-tenant disputes in 2005.

Marshal Income Statements: In order to understand the state actors responsible for
carrying out removals, I made a FOIA request to secure 2005 income statements for
all state marshals based in New Haven County.
67